Citation Nr: 21072531 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 14-37 047 DATE: December 3, 2021 REMANDED Entitlement to service connection for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from August 1967 to March 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision. The Veteran testified before two different Veterans Law Judges. He testified before Veterans Law Judge (VLJ) Seesel in July 2017 and before VLJ Deichert in October 2020. Transcripts of both hearings are in the Veteran's file. In December 2020, the Veteran was offered the opportunity to testify at another hearing before a third VLJ in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran did not respond to that letter. Accordingly, the Board found that the Veteran had waived his right to a third hearing. In March 2018, the claim was remanded by Judge Seesel. In April 2021, a panel of three judges granted the Veteran's claim for service connection for a low back disability and remanded the issue of entitlement to service connection for migraines for further development. As two different judges heard testimony concerning the issue on appeal, a panel of three judges including the two who presided over the hearings must decide the issues. 38 U.S.C. §§ 7102(a), 7101(c). For the reasons described below, however, this case must be remanded. As a remand is not a final decision of the Board, this case is not being issued by a panel. Upon completion of all development, if the matter is returned to the Board, any decision entered will be reviewed by a panel of three VLJs. Entitlement to service connection for migraines is remanded. The Veteran contends that his migraine headaches are related to his active service. As noted above, the matter was last remanded in April 2021 for further development. Specifically, the Board requested a VA opinion that addressed whether the Veteran's migraines clearly and unmistakably existed prior to active service and if so, was any such pre-existing migraines clearly and unmistakably not aggravated by active service. In a June 2021 report, the VA examiner did not adequately address the Board's questions and appeared to rely solely on the Veteran's reports of a head injury in 4th grade as a basis for determining that headaches began prior to service and that the symptoms he experienced during service were a natural progression of the headaches. The Board notes that the Veteran's lay statements alone are not sufficient to support a finding that his migraines clearly and unmistakably existed prior to service. Thus, a remand is necessary in order to provide the Veteran with an adequate VA examination. The matters are REMANDED for the following action: Forward the claims file to an appropriate examiner; only schedule an examination in this matter if deemed necessary by the examiner to answer the Board's questions. Upon review of the claims file, the examiner is asked to respond to the following: (a) Did the Veteran have a headache disability of any kind that clearly and unmistakably preexisted his active service? If so, please discuss the evidence showing this standard is met. The examiner should note that the Veteran's lay statements alone are not sufficient to support a finding that his migraines clearly and unmistakably existed prior to service. (b) If so, is it clear and unmistakable that the Veteran's headache disability was NOT aggravated during his service? (c) If the Veteran's headache disability was aggravated during his service, was the increase in severity clearly and unmistakably due to the natural progress of the disease? (d) If it is not clear and unmistakable that the Veteran's headache disability preexisted his service, then is it at least as likely as not that the Veteran's headache disability began during or was caused by his service? (Continued on next page) The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If further examination is required in order to provide the above-requested opinions, such should be provided. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.