Citation Nr: 21073968 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-06 464 DATE: December 13, 2021 ORDER Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a thoracic spine disability, to include as secondary to service-connected cervical spine and right knee disabilities, is remanded. Entitlement to a left knee disability, to include as secondary to service-connected cervical spine and right knee disabilities, is remanded FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's headaches are related to active duty. CONCLUSION OF LAW The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1981 through May 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board reopened the claims of entitlement to service connection for a left knee disability and headaches, and remanded them, along with the claim for a thoracic spine disability. The claims were once again remanded in July 2021. The appeal has now been returned to the Board for further appellate action. Service Connection Headaches The Veteran contends that his headaches are directly related to service, or in the alternative, are secondary to a service-connected cervical spine disability. A review of the Veteran's service treatment records (STRs) reveals a normal clinical evaluation of the Veteran's neurologic system at his November 1981 entrance examination (of note, the examination is also dated in June 1981). The records reveal a report of headaches in June 1986 and September 1986. On an August 1990 report of medical examination, clinical evaluation of the Veteran's neurologic system was normal. He also reported headaches and dizziness in March 1991, following an automobile accident when he hit his head. The Veteran testified at a hearing before a decision review officer (DRO) in August 1998, and reported that he had chronic headaches since he was involved in a motor vehicle accident in service. At a May 1999 VA scar examination, the Veteran reported persistent headaches since his automobile injury in service. Post-service VA outpatient treatment reports dated in August 2012 reveal a report of persistent headaches since the Veteran was involved in a motor vehicle accident in service. During an April 2019 VA examination, the Veteran reported headaches following a car accident in service in 1985 when his head struck the windshield. He indicated that he sought treatment following the accident and was treated with conservative care. He noted that the condition has progressed and worsened over time. The examiner assessed the Veteran with migraine headaches. The examiner opined that the headaches were less likely than not incurred in or caused by the in-service injury, event, or illness. The examiner's rationale was that during service, the condition was acute and there was no chronicity of care. The examiner indicated that the Veteran began to seek treatment for migraines in 2014 more than twenty years after service. The examiner noted that the Veteran had a family history of migraines and research finds that migraines tend to run in families. The examiner also indicated that the migraine headaches were separate from the cervical spine and right knee disabilities. The examiner stated that the medical record was silent for twenty years and the examiner was unable to state that the headaches were related to the Veteran's cervical trauma. Another opinion was obtained from a VA examiner in September 2021. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by in-service event, injury, or illness. The examiner's rationale was that while the Veteran sustained a head laceration in 1984 during active duty, there was no evidence of continuity of care for headaches. There were no complaints of headaches from 1991 until 1999 and from 1999 until 2013 when he was diagnosed with migraine headaches. The examiner stated that while the Veteran is competent to report headaches from the accident in service until the present time, the medical model states that all decisions of medical professionals are to be based on credible medical evidence and lay evidence does not constitute credible diagnosable medical evidence. The examiner also opined that it was less likely than not that the headaches were proximately due to the service-connected cervical spine disability. The examiner noted that current medical literature does not support cervical degenerative disc disease as a cause of migraine headaches. The examiner indicated that although the causes of migraines are not fully understood, genetics and environmental factors appear to play a role. The examiner also opined that the headaches were less likely than not aggravated beyond the natural progression by the service-connected cervical spine disability. The examiner's rationale was that the cervical spine degenerative disc disease does not cause, aggravate, or trigger migraines. The examiner cited to the mayoclinic.org as support of this opinion. Although there are two VA examiners who opined against the Veteran's claim for headaches, the Board affords lesser probative value to those opinions as the examiners failed to consider the medical records which reference the Veteran's continued complaints of headaches since his accident in service. The Veteran's lay statements since 1991 refer to a continuity of symptomatology since service. The Board finds that the Veteran is competent and credible to report the onset of headaches and that those symptoms have persisted since that time. See Charles v. Principi, 16 Vet. App. 370 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for headaches is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary with regard to the remaining claims on appeal. The Veteran's claims for entitlement to service connection for a thoracic spine disability and left knee disability were previously remanded by the Board to obtain new VA medical opinions. Specifically, the VA examiners were requested provide opinions with regard to direct and secondary service connection. As an initial matter, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right of compliance with the Board's remand directives, and imposes upon the Board a duty to ensure compliance with the terms of the remand. Failure to comply with the directives of a remand requires remand for corrective action. Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the thoracic spine disability, the examiner was requested to opine whether the Veteran's thoracic spine disability was directly related to service or whether it was at least as likely as not that the Veteran's thoracic spine disability was caused or aggravated by his service-connected cervical spine disability or right knee disability. An opinion was obtained from a VA examiner in September 2021. At that time, the examiner opined that it was the Veteran's thoracic spine disability was less likely than not incurred in or cause by the claimed in-service event, injury, or illness and less likely than not proximately due to or aggravated by the service-connected cervical spine disability. However, no opinion was proffered with regard to whether the thoracic spine disability was caused or aggravated by the service-connected right knee disability. Because the September 2021 VA medical opinion does not comply with the directives outlined in the July 2021 remand, the Board finds that a remand for a new VA medical opinion for the Veteran's claim for entitlement to service connection for a thoracic spine disability is warranted. With regard to the left knee disability, the examiner was requested to address whether it was at least as likely as not that the Veteran's left knee disability was directly related to service or was caused or aggravated by his service-connected cervical spine disability or right knee disability. An opinion was obtained from a VA examiner in September 2021. At that time, the examiner opined that it was the Veteran's left knee disability was less likely than not incurred in or cause by the claimed in-service event, injury, or illness and less likely than not proximately due to or aggravated by the service-connected right knee disability. However, no opinion was proffered with regard to whether the left knee disability was caused or aggravated by the service-connected cervical spine disability. Because the September 2021 VA medical opinion does not comply with the directives outlined in the July 2021 remand, the Board finds that a remand for a new VA medical opinion for the Veteran's claim for entitlement to service connection for a left knee disability is warranted. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an examiner with sufficient expertise to provide an addendum opinion regarding the nature and etiology of the Veteran's thoracic spine disability. The examiner must review the claims file, and note that review in the report. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's thoracic spine disability was caused or aggravated by a service-connected right knee disability, to include any altered gait and/or body mechanics caused by the Veteran's service-connected right knee disability. A full and detailed rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion. 2. Forward the Veteran's claims file to an examiner with sufficient expertise to provide an addendum opinion regarding the nature and etiology of the Veteran's left knee disability. The examiner must review the claims file, and note that review in the report. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disability was caused or aggravated by a service-connected cervical spine disability, to include any altered body mechanics caused by the Veteran's service-connected cervical spine disability. A full and detailed rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinion. 3. Confirm that all medical opinions obtained comport with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.