Citation Nr: 21061563 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-04 166A DATE: October 4, 2021 REMANDED Entitlement to an initial compensable rating for tension headaches prior to September 28, 2020, and in excess of 50 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1991 to April 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This issue on appeal was previously before the Board in December 2019 and April 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In October 2020, after taking further action, the AOJ increased the rating for tension headaches from 0 (zero) to 50 percent, effective September 28, 2020. Because the development sought in the December 2019 and April 2021 remands has not been fully completed, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.) Entitlement to an initial compensable rating for tension headaches prior to September 28, 2020, and in excess of 50 percent thereafter, is remanded. In its December 2019 remand, the Board directed the AOJ to undertake additional records development and to afford the Veteran a new VA examination in connection with his claim. In its April 2021 remand, the Board found that the AOJ had substantially complied with the records development ordered in the December 2019 remand, but that it had not complied with the remand directives regarding a new VA examination. In both the December 2019 and April 2021 remands, the Board noted that an August 2013 VA examiner had opined that the tension headaches that the Veteran had in service were presently controlled, and that his current headaches were frontal and distinct in type from his service-related tension headaches. Both remands also noted that a subsequent VA examiner in June 2016 made no such distinction, and specifically instructed a new VA examiner that if it was his or her opinion that it was more likely than not that the Veteran suffered from headaches that were separate or distinct in type from his service-related tension headaches, a complete rationale for that conclusion must be provided. Both remands also specifically instructed the examiner to disregard the ameliorative effects of medication. The Veteran was afforded a VA examination in September 2020, and in an October 2020 addendum opinion the examiner opined that the Veteran's current headache condition was separate in type from his service-related tension headaches, reasoning that an October 2012 neurology note indicated that the Veteran had a new onset of frontal headaches associated with blurry vision and that he was diagnosed at that time with migraines. She noted that this was 19 years after military separation, and that his presentation was different from the tension headaches which the Veteran had described as a squeezing type of pain originating in his neck and radiating into his occipital area over the last 20 years. In its April 2021 remand, the Board found that the September 2020 VA examiner did not differentiate between symptoms attributable to the Veteran's service-connected tension headaches and his non-service connected migraine headaches, and remanded the claim for an addendum opinion regarding that differentiation. The Board also noted that it did not appear that the September 2020 VA examiner disregarded the ameliorative effects of medication when assessing the severity of the Veteran's headache disability. In its remand directives, the Board specifically directed the examiner to differentiate between the symptoms attributable to the Veteran's service-connected tension headaches and non-service connected migraine headaches, if feasible, to include a retrospective opinion on the matter back to October 2012 (when the Veteran's claim was filed), and that if no such differentiation was possible, that should be noted. As indicated, the Board also directed the examiner to disregard the ameliorative effects of medication regarding the Veteran's service-connected tension headaches. The AOJ obtained an addendum VA opinion from a new VA examiner in May 2021. The examiner stated that considering the history as related by the Veteran, current examination, the remand letter, and a review of medical records, the Veteran's current headache condition was separate in type from his service-related tension headaches. Like the September 2020 VA examiner, the May 2021 examiner cited to the October 2012 neurology note which indicated that the Veteran had a new onset of frontal headaches associated with blurry vision for the last 6 months and was diagnosed with migraines, and that this was 19 years after military separation. The examiner explained that this presentation was different from the tension headaches that the Veteran described as a squeezing type of pain originating in his neck and radiating to his occipital area in the last 20 years. The examiner also opined that it was at least as likely as not that the symptoms of tightness and throbbing pain associated with both sides of the head were associated with the Veteran's service-connected tension headaches, and that the other symptoms he reported were more typically associated with migraine headaches. He stated that based on review of the entire record, it was his opinion that the Veteran's headaches were moderate to severe in intensity. The Board finds the May 2021 VA opinion inadequate for at least three reasons. First, in providing his opinion on whether it was possible to differentiate between the Veteran's service-connected tension headaches and non-service connected migraine headache, the examiner focused solely on the October 2012 neurology note, while disregarding evidence that may be more favorable to the Veteran. For example, July 1992 and August 1992 STRs show a diagnosis of tension headaches, but an August 1992 STR shows a diagnosis of migraine headaches. A September 1992 STR also shows that the Veteran's headaches had a frontal focus during service, though under assessment the diagnosis was sinusitis versus tension headache. Another August 1992 STR shows a diagnosis of migraine versus rule out migraine, and April 1993 STRs show left-sided headaches and superior cephalic headaches. Turning to post-service treatment records, a September 2012 VA treatment record shows that the Veteran reported frontal throbbing headaches off and on since 1992. In a January 2018 VA treatment record, the Veteran reported that he had had bad migraines since he was in service. While acknowledging that the October 2012 neurology note cited by the September 2020 and May 2021 VA examiners indicates that the Veteran reported having two types of headaches, one of new onset which was frontal in nature and the other a squeezing type of pain that he had had since service, the Board notes that the August 1992 STR showing a diagnosis of migraine headaches and the September 1992 STR showing that the Veteran's headaches were frontal in nature at that time indicates that the Veteran may have been having both types of headaches, or at least symptoms of both types of headaches, in service. These records contradict the September 2020 and May 2021 VA examiners opinions that the Veteran's symptoms of migraine headaches (described as frontal in nature) appeared only 19 years after separation from service. Second, the May 2021 VA examiner did not include a retrospective opinion as to the severity of the Veteran's service-connected tension headaches back to October 2012, stating only that the Veteran's headaches were moderate to severe in intensity. Even in providing this statement, the examiner did not indicate whether he was referring to the Veteran's tension headaches or migraine headaches, and in any event, his statement regarding severity does not relate to the relevant rating criteria. Third, the examiner failed to disregard or address the ameliorative effects of medication, as specifically directed by the Board in its April 2021 remand. In light of the foregoing, a remand for a new VA opinion is warranted. See Stegall, supra. This matter is REMANDED for the following action: 1. Arrange to provide the record on appeal to the VA examiner who provided an opinion with respect to the nature and severity of the Veteran's service-connected tension headaches in May 2021. The examiner should review the record. After reviewing the record, the examiner should differentiate the symptoms attributable to the Veteran's service-connected tension headaches from those attributable to his non-service connected migraine headaches, if feasible, to include a retrospective opinion on the matter back to October 2012 (when the Veteran's claim was filed). If no such differentiation is possible, that should be noted. The examiner should also disregard the ameliorative effects of medication, providing his opinion as to the severity of the Veteran's service-connected tension headaches without taking into account the effects of medication. The examiner's retrospective opinion regarding the severity of the Veteran's service-connected tension headaches should describe functional impairment as it relates to the relevant rating criteria, to include whether there were prostrating attacks; if so, how often they occurred, on average; how long they generally lasted; and how they impacted the Veteran in terms of economic adaptability. In providing an opinion regarding the differentiation of the symptoms attributable to the Veteran's service-connected tension headaches from those attributable to his non-service connected migraine headaches, the examiner should consider and address the October 2012 neurology note indicating that the Veteran reported two types of headaches, one noted to be a new onset of frontal headaches associated with blurry vision for the last 6 months, and one manifested by a squeezing type of pain originating in the neck and radiating to the occipital area over the last 20 years, but should also consider and address the August 1992 STR showing a diagnosis of migraine headaches, the September 1992 STR showing that the Veteran's headaches had a frontal focus during service, the August 1992 STR showing a diagnosis of migraine versus rule out migraine, the April 1993 STRs showing left-sided headaches and superior cephalic headaches, the September 2012 VA treatment record showing that the Veteran reported frontal throbbing headaches off and on since 1992, and the January 2018 VA treatment record in which the Veteran reported that he had had bad migraines since he was in service. If the May 2021 VA examiner is no longer employed by VA or is otherwise unable to provide the requested opinion(s), arrange to obtain the information from another qualified examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.