Citation Nr: 21064097
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 14-23 254
DATE: October 19, 2021

REMANDED

Entitlement to service connection for headaches, to include migraines, is remanded.

REASONS FOR REMAND

In a 2020 decision, see 09/1/2020 BVA Decision, the Board denied the appeal, and the Veteran appealed to the Court of Appeals for Veterans Appeals (Court). In June 2021, while the appeal was pending, the Veteran, through counsel, and the Secretary, VA, agreed to and submitted a Joint Motion for Remand (JMR) and vacatur of the September 2020 Board decision. See 06/11/2021 CAVC Decision, P. 2-6. In an Order also dated in June 2021, the Court granted the JMR, vacated the September 2020 Board decision, and remanded the case to the Board for further appellate review consistent with the JMR. Id. P. 7.

Entitlement to service connection for headaches, to include migraines, is remanded.

The consensus of the parties in the JMR is that the VA examination on which the Board relied in the September 2020 decision was inadequate. Specifically, the VA examiner in May 2019 made a factual determination that is not within the purview of medical experts, i.e., the examiner noted that the Veteran's reported history was outweighed by the other evidence of record and did not provide any other discussion. The parties also agreed that the Board did not adequately discuss the Veteran's medical history for the period 1986 to May 2019. Id. P. 3-4.

The matters are REMANDED for the following action:

1. The Agency of Original Jurisdiction (AOJ) shall ensure that all relevant treatment records generated since July 2019 SSOC are obtained and added to the claims file. Further, the AOJ shall also ensure that any scanned entries in the Veteran's records are added to the claims file in a fully visible format.

2. After the above is complete, arrange a review of the claims file by the physician who conducted the May 2019 examination and provided the nexus opinion or another clinician of equal qualifications. Ask the physician to review the claims file and opine on whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's headaches had onset in active service or is otherwise causally related to active service.

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Inform the physician as follows: Veteran's reported history and other statements must be considered; the absence of contemporaneous medical documentation or documented treatment records, alone, is not an adequate basis for a negative nexus opinion. If the absence of treatment records is relevant to an opinion, that relevance must be explained in the rationale; and, while the physician may opine on whether the Veteran's reported history is consistent or inconsistent with the objective medical and clinical findings of record, it is not the province of the physician to assess the weight and credibility of the evidence of record.

With the above in mind, the physician must provide a full explanation for all opinions rendered.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.