Citation Nr: 21073524 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-19 498 DATE: December 8, 2021 REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected disability, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Appellant served on active duty in the United States Army from April 2005 to June 2005, for a total of less than 90 days. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, February 2021 and April 2021, the Board remanded this matter for further development. Unfortunately, another remand is necessary to ensure that development is completed. There has not been substantial compliance with the Board's remand directives. When a remand is issued, the Appellant is entitled, as a matter of law, the right to compliance with the remanded order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, not strict, with the terms of the remanded order is required under Stegall. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disability, is remanded. In April 2021, the Board remanded the claim to have the Appellant examined and obtain an etiological opinion regarding the assessed migraine headaches. The Board asked for opinions on direct and secondary bases, as well as by way of in-service aggravation of a pre-existing disability, here characterized as migraines, but also including nonspecific white matter disease of the brain. In June 2021, the Appellant was afforded a VA examination. The examiner offered negative etiological opinions regarding direct and secondary service connection, consistent with their finding that the Appellant had disability that pre-existed service. In terms of a pre-existing disability, the examiner assessed migraines, with an onset of 1979, or at birth, and stated that the migraine headaches clearly and unmistakably pre-existed service. The examiner also stated that the headaches were clearly and unmistakably not aggravated beyond normal progression in service. In terms of rationale, the examiner explained that while the Appellant had migraine headaches, "there is no documentation to indicate treatment or care in the service." The examiner concluded that the nonspecific white matter disease was a defect, and stated that there was "no superimposed" disability thereon. The examiner explained that an MRI of 2009 showed changes of the white matter of the Appellant's brain that "is indicative of migraine disease." The examiner noted that the Appellant reported worsening of the headaches over time, and explained that this was "natural progression" of the white matter disease and migraine headaches. The examiner's opinion is insufficient to decide the claim. First, while the examiner stated that there was no documentation regarding headaches in service, the service records document an April 2005 report of headaches for seven days, with an assessment of muscle strain of the neck and shoulder. Second, while the examiner stated that the migraines and white matter disease pre-existed service and had progressed in severity, the examiner characterized the white matter disease as a defect, as opposed to a disease. This seems contradictory to the Board because a defect, unlike a disease, is generally not subject to worsening or improvement. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954). Accordingly, the examination report is returned. 38 C.F.R. § 4.2. 2. Entitlement to a TDIU is remanded. The claim for a TDIU is intertwined with the service connection claim for migraine headaches. A potential grant of service connection for the claim, and any statement made by the examiner on the impact of headaches, if service connected, on employability would affect adjudication of the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the TDIU claim is also remanded. The matters are REMANDED for the following action: 1. Schedule the Appellant for a VA examination to address the nature and etiology of her claimed migraine headaches. The examiner must obtain a complete, pertinent history from the Appellant and review the claims file in conjunction with the examination, giving particular attention to her service treatment records, lay assertions, and the pertinent medical evidence. After a review of the claims file, the examiner is asked to respond to the following questions and provide a full statement addressing the basis for the conclusion(s) reached: a) Upon prior VA examination it was determined that the Appellant had a congenital white matter disease and migraine headaches prior to entrance. Please explain whether this abnormality is a congenital defect or a congenital disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. b) If it is a congenital defect, please opine whether it is at least as likely as not (about a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability. Please provide a complete explanation for the opinion. c) If it is not a congenital defect, i.e., if the examiner identifies the condition as a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the white matter disease and migraine headaches pre-existed active service. Please provide a complete explanation for the opinion. d) If the examiner identifies the condition as a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing congenital abnormality WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress of the disease. Please provide a complete explanation for the opinion. e) If the examiner renders unfavorable opinions with respect to remand paragraphs b), c) or d), is it at least as likely as not (a probability of 50 percent or greater) that migraine headaches began in service, or are otherwise related to service? Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. 2. After the development directed above has been completed to the extent possible, and any other development deemed necessary by any newly obtained evidence, readjudicate the claims. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.