Citation Nr: 21065667
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 17-20 306
DATE: October 27, 2021

REMANDED

Entitlement to service connection for a low back disability is remanded.

Entitlement to service connection for migraine headaches is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from October 1984 to September 1987.

1. Entitlement to service connection for a low back disability is remanded.

2. Entitlement to service connection for migraine headaches is remanded.

The Board previously considered and remanded these issues in March 2021 to obtain adequate medical opinions that considered the lay evidence. Unfortunately, remand is again necessary. Although the Agency of Original Jurisdiction (AOJ) obtained new medical opinions, May 2021 negative opinions for the back and migraines again relied on the absence of "chronicity of care" and appear to dismiss the lay evidence as "subjective only" without further explanation. As noted previously, the record includes statements from the Veteran and her mother as to continuous back and migraine symptoms after service. Recently, the Veteran also submitted a statement from her sister reporting that she, too, witnessed the Veteran with back pain and headaches after leaving the Army and a former employer who witnessed the Veteran have back problems and headaches when she was in his employ from 1999 to 2005. A medical opinion that relies solely on the lack of contemporaneous medical records without consideration of lay evidence is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The AOJ should obtain new opinions that consider all the relevant evidence.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. Obtain a new medical opinion for the low back and migraine claims. The medical expert should review the claims file and address the following:

(a.) Is the Veteran's current low back disability, including lumbosacral strain, at least as likely as not related to her service, including her report of a fall while refueling a fuel tank? 

(b.) Are the Veteran's current migraines at least as likely as not related to service or to have onset therein?

The medical expert should consider all lay and medical evidence, particularly the statements from the Veteran, her mother, her sister, and her former employer attesting to her history of back pain and headaches. All opinions must be supported by detailed rationale. The expert should not rely solely on the lack of contemporaneous medical records as rationale for the opinion. 

If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.P. Armstrong

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.