Citation Nr: 21071069 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 10-11 338 DATE: November 29, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to July 1992. The Veteran attended a hearing before the undersigned Veterans Law Judge in July 2013. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in March 2020 and July 2021. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that his migraine headaches are related to his service-connected traumatic brain injury (TBI). In accordance with the July 2021 Board remand, the Veteran had an examination for his migraine headaches in August 2021. The examiner opined that the Veteran's migraine headaches are not manifestations of his service-connected traumatic brain injury. The examiner stated that the Veteran's migraines are "vascular headaches pathophysiologically". The examiner further opined that it was less likely than not that the Veteran's migraine headaches were caused by his service-connected disabilities, to include his post-traumatic stress disorder (PTSD) or his TBI. The examiner stated that TBI or post traumatic headaches clinically appear within days after the injury, or in some cases as late as 6 months post trauma, and that the Veteran's diagnosis in 2006 "belies this time frame". Additionally, the examiner opined that it was less likely than not that the Veteran's service-connected disabilities aggravated his migraine headaches, stating that there is "no evidence to support this". The Board finds the August 2021 examiner's opinion to be inadequate. The August 2021 examination is not in compliance with the July 2021 remand by the Board. The July 2021 Board remand instructed the examiner to specifically review two February 2020 TBI assessments, in which one VA neurologist noted that the Veteran did not exhibit headaches due to TBI, and one psychologist noted that the migraines were subjective symptoms of his TBI. It is not clear whether the August 2021 examiner fully considered the two February 2020 TBI assessments as instructed by the July 2021 Board remand. Since the Board's remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Furthermore, the Board finds the examiner's opinion on whether the Veteran's service-connected disabilities aggravated the Veteran's migraine headaches conclusory and does not provide an appropriate rationale to support the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran's migraine headaches, to ensure full compliance with the July 2021 Board remand, and to adequately address the whether the Veteran's migraine headaches were caused or aggravated by his service-connected disabilities. The matters are REMANDED for the following action: Obtain a VA opinion to clarify the etiology of the Veteran's migraine headaches. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Following a review of the entire record, the examiner should address the following: Are the Veteran's migraine headaches manifestations of his service-connected traumatic brain injury (TBI)? In answering this question, the examiner must specifically review and address the conflicting medical evidence of record. Specifically, the examiner must review and address a January 2020 cognitive screening for TBI, which noted that the Veteran experienced subjective symptoms including migraines. See VBMS, document labeled C&P Exam, receipt date 02/24/2020, page 4. The examiner must also review and address a January 2020 disability benefits questionnaire (DBQ), which noted that the Veteran did not exhibit headaches due to TBI. See VBMS, document labeled C&P Exam, receipt date 02/24/2020. If the Veteran's migraine headaches are not manifestations of his TBI, the examiner should address the following: a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's migraine headaches were caused by his service-connected disabilities, to include his post-traumatic stress disorder (PTSD) or his TBI? b) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches were aggravated by his service-connected disabilities, to include his PTSD and TBI? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.