Citation Nr: 21065646 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-54 469 DATE: October 26, 2021 REMANDED Entitlement to service connection for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2003 to July 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2016 the Veteran filed a timely notice of disagreement (NOD) and in August 2017, the RO issued a statement of the case (SOC). In October 2017, the Veteran perfected her substantive appeal and requested a video conference before a Veterans Law Judge (VLJ). In March 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding is associated with the record. In an April 2021 decision, the Board remanded this issue for additional development. Unfortunately, the requested development has not been substantially completed and a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for migraines is remanded. The Veteran is seeking service-connection for migraines. Specifically, she contends that her migraines did not preexist service and began during active duty. Although she had experienced headaches as part of her normal period cycle, she had not had migraines, to include symptoms such as blurry vision and elevated pain, prior to service. See March 2021 Board Hearing Tr. As noted above, in an April 2021 decision, the Board remanded this issue for additional development. Specifically, the RO was instructed to provide the Veteran with a VA examination and obtain a medical nexus opinion. Pursuant to the remand directives, in April 2021, the Veteran was afforded a VA examination. The examiner then opined that the Veteran's disability clearly and unmistakably preexisted service. He then stated that the Veteran's "migraines were not aggravated by service" and that there was no change during service. Here, the examiner fails to apply the correct legal standard and opine, as requested, whether the Veteran's preexisting migraines were clearly and unmistakably not aggravated by service, i.e., whether there was any increase in severity. Furthermore, the VA examiner fails address the Veteran's service treatment records and competent lay assertions regarding her headache disability in providing his conclusory statement that there was no change to the Veteran's disability during service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, a remand is warranted for a new VA opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records. Provide the Veteran an opportunity to identify and submit any outstanding private treatment records. All obtained records should be associated with the evidentiary record. All attempts made must be documented, to include the unavailability of any identified records. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's headaches. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: (A) Determine whether the evidence of record clearly and unmistakably (i.e., it is undebatable) shows that the Veteran's migraine disability preexisted service. (B) If so, is there clear and unmistakable evidence that the Veteran's preexisting migraine disability was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up)? In doing so, the examiner should consider the Veteran's STRs, to include her entrance examination and STRs showing treatment during service. The examiner should also consider a January 2018 Statement indicating that the Veteran may have experienced stress during service, and that this aggravated her migraines. The examiner should additionally consider the Veteran's competent lay assertions in her March 2021 Board hearing, in which he contends that although she had experienced headaches as part of her normal period cycle, her migraines during service were more severe. (C) If there is not clear and unmistakable evidence that the Veteran's migraine disability preexisted service, then the Veteran must be considered to have been sound at entry. Based upon that premise, is it as least as likely as not (50 percent probability or greater) that the Veteran's migraine disability had its onset in service or is otherwise related to service? The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 3. 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 Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and her representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.