Citation Nr: 21070504 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-22 905 DATE: November 24, 2021 REMANDED Entitlement to service connection for a chronic headaches condition is remanded. REASONS FOR REMAND The Veteran had active service from October 1982 to September 1988. In a May 2020 decision, the Board denied claims for entitlement to service connection for a chronic headaches condition and a low back condition and remanded claims for entitlement to service connection for a left knee condition and an acquired psychiatric disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Joint Motion for Partial Remand (JMPR), the Veteran and the Secretary of Veterans Affairs requested to vacate the Board's denial of the claim for entitlement to service connection for a chronic headaches condition and to remand this claim for readjudication. The parties agreed not to pursue the portion of the Board's decision denying service connection for a low back condition before the Court. In July 2021, the Court granted the JMPR and remanded the matter for action consistent with the JMPR's terms. The Veteran's claim for entitlement to service connection for a chronic headaches condition has now been returned to the Board for consideration. Separately, the Veteran's claims for entitlement to service connection for a left knee condition and an acquired psychiatric disorder have not been re-certified to the Board for consideration and, therefore, will not be addressed in this determination. Additionally, the Board notes that, on May 21, 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, identifying the May 21, 2020, Board decision denying service connection for chronic headaches and a lower back condition. On May 24, 2021, VA issued the Veteran a letter informing him that this higher-level review request could not be accepted, as VA did not receive this form within 1 year of the date of the July 2013 denial of these claims or the October 2018 supplemental statement of the case (SSOC) denying these claims. On July 13, 2021, the Veteran submitted a Decision Review Request: Supplemental Claim, identifying the May 21, 2020, Board denial of the claim for service connection for a back condition. In an attached letter, the Veteran's representative reiterated that the May 21, 2021, higher-level review request was filed with regard to the May 21, 2020, Board decision. However, the representative further stated that the higher-level review appeal was filed by mistake instead of the intended supplemental claim under VA Form 20-0995, which was attached to this statement. As the claim for service connection for a chronic headaches condition has already been appealed to the Court, as discussed above, and the representative specifically indicated that the May 2021 VA Form 20-0996, Decision Review Request: Higher-Level Review was submitted in error, the Board will proceed to adjudicate the claim on appeal, as done below. With regard to the Veteran's July 2021 supplemental claim for service connection for a back condition, the Board notes that M21-5, Chapter 5.1.c, indicates that Veterans may not request a Higher-Level Review of a Board decision involving the same issue, and that VA must make at least one intervening supplemental claim decision in such circumstances. Regardless, the Board does not have jurisdiction to review this claim at this time and will refer this matter to the Agency of Original Jurisdiction (AOJ) for appropriate action. Turning to the issue on appeal, the Veteran is seeking service connection for headaches. He generally contends that his headaches began during service following a May 1987 motor vehicle accident (MVA), and that he has since suffered from chronic headaches. See, e.g., July 2016 VA headaches examination; August 2019 Board hearing transcript; see also July 2011 VA Form 21-526 (asserted headaches began in 1983); June 2013 VA examination (Veteran reported headaches began in service and that he was treated with ibuprofen); May 2016 VA Form 9 (headaches began on active duty); see also May 1987 Standard Form 558 (noting occurrence of MVA). Unfortunately, further development is needed in accordance with the July 2021 JMPR. Specifically, the parties agreed in the JMPR that the Board failed in its May 2020 determination to address the issue of secondary service connection for a chronic headache condition and that the Board erred by relying on a July 2016 VA examination. It was noted in the JMPR that a July 2016 VA examiner failed to consider multiple relevant computed tomography (CT) scans and a magnetic resonance imaging (MRI) scan in rendering a pertinent opinion on the matter on appeal. Moreover, the Veteran reported in a February 2015 VA examination that his service-connected tinnitus is so loud that it gives him headaches, which was not considered in the May 2020 Board determination. As such, the Board finds that this issue must be remanded in order to obtain a new VA opinion addressing these matters. Additionally, on remand, all outstanding VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Associate with the claims file the following: (a.) All available treatment records from the Carl Vinson VA Medical Center (VAMC) and associated outpatient clinics from June 2021 to the present; (b.) All available treatment records from the Charlie Norwood VAMC and associated outpatient clinics from August 2021 to the present; and (c.) All available treatment records from the Atlanta VA Health Care System and associated outpatient clinics from July 2014 to the present. 2. Refer the claims file to a VA examiner so that an addendum opinion may be obtained. If additional examination is needed to render the requested opinions, such should be provided. Upon review of the claims file, the examiner should respond to the following: (a.) Whether it is at least as likely as not that the Veteran has a headache condition that began during service or was caused or aggravated by his active service. The examiner should specifically consider multiple CT scans and an MRI scan showing evidence of a remote right wall orbital fracture and medial deviation, to specifically include a July 2014 CT scan, a January 2014 CT scan, an October 2013 CT scan, and a December 2013 MRI. (b.) Whether it is at least as likely as not that the Veteran has a headache condition that is caused or aggravated by his service-connected tinnitus. The examiner should provide a complete rationale for any opinions provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.