Citation Nr: 21072907 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-05 094 DATE: December 6, 2021 REMANDED Entitlement to service connection for a headache disorder, to include tension and migraine headaches, is remanded. Entitlement to an initial rating in excess of 10 percent for status post left ankle surgery for torn ligaments (hereinafter referred to as a "left ankle disability") is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2010 to August 2014. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a videoconference hearing in her January 2018 VA Form 9, but withdrew this request in November 2019. These claims were previously before the Board in October 2020. 1. Entitlement to service connection for a headache disorder is remanded. This claim must be remanded in order to obtain an adequate medical opinion. The Veteran was provided VA examinations in January 2017, November 2017, and October 2021, but they are all unfortunately inadequate. The January 2017 VA examiner found a diagnosis of tension headaches but limited his opinion to migraine headaches, opining that the Veteran's migraine headaches were less likely than not incurred in or caused by service as service treatment records (STRs) did not mention migraine headaches and the Veteran denied headaches at the time of separation. However, the examiner did not address the Veteran's report of an onset of symptoms in 2012 or provide an opinion as to her tension headaches. The November 2017 VA examiner found a diagnosis of acute intermittent tension headaches with an onset of 2012, and opined that they were less likely than not incurred in or caused by service as the in-service headaches were acute only with no evidence of chronicity of care. He did not address the Veteran's report of an onset of symptoms in 2012, which continued and currently manifested three times a month. See January 2017 VA examination report. The Board notes that a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In other words, the absence of treatment or symptoms in service is not necessarily fatal to the claims for service connection. Pursuant to the October 2020 Board remand instructions, the Veteran was provided another VA examination in October 2021. However, the VA examiner found that the Veteran did not have nor ever had been diagnosed with a headache condition, but then stated that the Veteran reported a gradual onset of a migraine condition in 2012 and one migraine diagnosis in 2018. The examiner opined that the Veteran's migraine headaches were less likely than not incurred in or caused by service as there was no current or chronic diagnosis for migraines. However, the examiner did not address the prior diagnoses of tension headaches or the Veteran's report of continuity of symptomatology since service. As such, a remand is required in order to more completely and adequately evaluate the nature and etiology of the Veteran's headache disorder. 2. Entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In the October 2020 Board remand, the left ankle disability initial rating claim was remanded for outstanding relevant VA treatment records, as well as another VA examination that complied with Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range-of-motion (ROM) measurements of an opposite undamaged joint. Subsequently, the Veteran was provided a VA examination in October 2021. While the examination contains ROM testing results of the ankles in active and passive ROM, the examiner did not address ROM testing with weight-bearing and nonweight-bearing. For this reason, remand is necessary to afford the Veteran a new examination to more completely evaluate the nature and current severity of the left ankle disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any updated relevant treatment records. 2. Obtain an addendum medical opinion by an appropriate VA neurologist to determine the nature and etiology of the Veteran's claimed headache disorder. The examiner is requested to review all pertinent records associated with the claims file. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After reviewing the claims file in its entirety, the examiner is asked to respond to the following: a) Provide an opinion as to whether the Veteran's headache disorder at least as likely as not (50 percent probability or greater) was incurred in, caused by, aggravated by, or is otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's in-service complaints of and/or assessment of headaches (see 2/17/11, 6/1/11, 11/14/11, 12/16/11, 1/10/12, 3/20/12, 8/17/12, 8/20/12, 4/5/13, 5/28/13, 12/9/13 STRs); (ii) The January 2017 VA examination report reflecting a diagnosis of tension headaches with a reported onset in 2012, which had continued to the present; (iii) The November 2017 VA examination report reflecting a diagnosis of acute intermittent tension headaches with an onset in 2012; (iv) A January 2020 letter in which the Veteran reported an onset of headaches in 2012 that continued ever since with varying severity; and (v) The October 2021 VA examination report reflecting a gradual onset of headaches in 2012, a diagnosis of migraines in 2018, and continuing headaches that remained unchanged. The examiner should provide an explanation for any conclusions reached. 3. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the current severity of her service-connected left ankle disability. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner is asked to examine the Veteran, review her claims file, and then respond, with compete rationale, to the following: a) Indicate all current symptoms associated with the Veteran's service-connected left ankle disability, and describe the severity of such symptoms. b) Test and report the ROM in active motion, passive motion, weight-bearing, and nonweight-bearing for BOTH ankles. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. c) In reporting the ROM findings, comment on the extent of any painful motion, INCLUDING at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups or upon repetitive use testing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit and consider the Veteran's lay statements regarding any other functional loss and instability. If it is not possible to provide a specific measure, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. d) Provide information concerning the functional impairment resulting from the service-connected left ankle disability that may impact the Veteran's ability to function and perform tasks in a work or work-like setting. A complete rationale should be provided for any opinion provided. (Continued on the next page) 4. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, 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.