Citation Nr: 21071322 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-24 156 DATE: November 30, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1970 to November 1974. Most recently, the Board remanded the claim in September 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The case has since been returned to the Board for appellate review. Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. 1. Service connection for headaches is remanded. The Board finds that the October 2021 VA medical opinion is inadequate as the examiner's basis for rationale, in part, relied on "multiple prior rating decisions that denied service connection for his (the Veteran's) claimed headaches. Even after appealing, the previous denials were confirmed and continued." Notably, the examiner found that the preponderance of the evidence was against the Veteran's claim. The Board notes that medical examiners are not to opine on the procedural history or legal weight of evidence, but rather make medical findings supported by medical evidence. Also, the examiner found that there was no continuity of symptoms; however, he did not address the Veteran's competent statements and testimony that he has had headaches since active duty or that he had no medical insurance after his naval service most of the time and was unable to obtain earlier treatment. Therefore, the VA examiner's October 2021 negative opinion founded on the absence of treatment or complaints in service or since service is based on an inaccurate factual premise because there is evidence of in-service complaints and post service complaints. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A medical opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993). Therefore, the AOJ should obtain an additional medical opinion. 2. Service connection for a TBI is remanded. The Veteran contends that he has a TBI with residual headaches that are related to his active duty service. As such, the Board notes that the issue is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claims for entitlement to service connection for a TBI should be deferred pending final disposition of the claim of entitlement to service connection for headaches. The matters are REMANDED for the following action: 1. Obtain a VA medical addendum opinion by a suitably qualified clinician (who has not provided a previous opinion in this case, if feasible) to determine the nature and etiology of the Veteran's headaches. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's headaches are related to any in-service disease, event, or injury, to include the Veteran's reported in-service MVA. The examiner should address the Veteran's competent statements and testimony that he has had headaches since active duty, as well as provide a complete rationale for all opinions expressed and conclusions reached. The examiner should also consider the information provided by the Veteran in July 2021 that he was in transit when the 1972 MVA occurred and the records of the accident likely did not make it into his service records; that the headaches were manageable in service and worsened after service; and that he had no medical insurance after his naval service most of the time and was unable to obtain earlier treatment. See also October 2015 spouse statement; August 2017 statement of Veteran's sister received in October 2017. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.