Citation Nr: 21068927 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 14-01 069 DATE: November 16, 2021 ORDER Service connection for migraine headaches is granted. FINDING OF FACT The Veteran's migraine headaches had their onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. § 1110, 1131, 1154(a); 38 C.F.R. § 3.303. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1993 to August 1995 and from November 2001 to September 2003, including service in Southwest Asia. He had additional periods of Naval Reserve service from January 1995 to June 2008. This appeal was last before the Board in May 2021 when it was remanded to obtain a medical opinion. Although the medical opinion has been obtained, the Board finds that it is insufficient for adjudication purposes and a remand is necessary. Stegall v. West, 11 Vet. App. (268) 1998. 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected obstructive sleep apnea (OSA) is remanded. The Veteran asserts two theories of entitlement to service connection for his diagnosed migraine headaches. On direct service connection, he asserts that his headaches began while on active-duty service in 1995 and/or in 2001 and have continued since then, becoming worse over time. On secondary service connection, the Veteran asserts that his service-connected obstructive sleep apnea increases the severity of his headaches. This appeal has unfortunately had several remands as the Board has labored to obtain medical opinions sufficient for adjudication. In the most recent Board remand, the Board found that the medical opinion provided in January 2021 was insufficient. The examiner began his opinion by stating that the Veteran's headaches "clearly and unmistakably existed prior to service." This is factually inaccurate as there is no notation on the Veteran's entrance examination and no other evidence in the file to support this. The Veteran has stated that his headaches began in 1995 or in 2001, both during periods of active-duty service. Then, the examiner stated that the Veteran's headaches were indeed a symptom of his service-connected sleep apnea, but confusingly concluded, "but in this case the apnea is well compensated for and has had a worsening of his frequency to the [symptoms] of apnea." The Board was unable to ascertain the intent of the examiner's rationale. Moreover, secondary service connection on an aggravation basis has nothing to do with the compensation awarded for the underlying service-connected disability. Accordingly, the Board sought another medical opinion. In September 2021, an addendum medical opinion was provided. The reviewer opined that the "medical treatment records do not show his migraine headaches have been permanently worsened due to his obstructive sleep apnea." As this is the incorrect legal standard for secondary service-connection claims, the Board finds this opinion is insufficient for adjudication purposes. 38 C.F.R. § 3.310. Here, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the competent and credible evidence of record shows that his current headaches began during service and have been recurrent since that time. The Veteran is competent to report the onset and continuation of his headaches and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the VA negative nexus opinions; however, because the evidence shows that the Veteran's migraine headaches had their onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). REASONS FOR REMAND 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. As noted in the previous Board remand, the Veteran's TDIU claim is inextricably intertwined with the Veteran's claim of service connection for a migraine disability. As such, the claim for TDIU must be remanded. See Harris v. Derwinski,1 Vet. App. 180, 183(1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Here, and the Veteran reports that he last worked on April 1, 2019, and currently his disabilities do not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) since that time. This of course may change after the RO assigns an initial rating(s) for the Veteran's now service-connected migraine headaches and an effective date for the grant; his claim of service connection was filed on March 7, 2012. As such, this issue must unfortunately again be remanded. The matters are REMANDED for the following action: Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his service-connected disabilities and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.