Citation Nr: 21074731 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 07-22 894 DATE: December 16, 2021 REMANDED Service connection for a headache disorder, to include migraines, is remanded. REASONS FOR REMAND The Veteran had active service from June 1976 to August 1976 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office, in Waco, Texas. The case was remanded by the Board in March 2011. In September 2012, the Board denied the issue on appeal. In October 2012, the Veteran appealed the September 2012 Board denial of service connection for headaches to the United States Court of Appeals for Veterans Claims (Court). In a December 2013 Order, pursuant to a November 2013 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision to the extent that it denied service connection for headaches. The Board again remanded the current issue in May 2014 and July 2015. In an April 2016 decision, the Board again denied service connection for the Veteran's headache disorder. The Veteran appealed the Board's April 2016 decision to the Court, which in a September 2017 memorandum decision vacated the Board's April 2016 decision and remanded the case to the Board. The Board thereafter remanded this appeal in July 2018. The Veteran seeks service connection for a headache disorder, which he reports became manifest in service. In addition, in December 2018 written argument, his attorney maintained that because the CAVC had determined that prior VA medical opinions were inadequate, it was error to rely on them and that the VA examiner who performed the October 2018 examination similarly failed to appropriately consider his lay report regarding the onset of the disability in service. In a February 2019 decision, the Board again denied service connection for the Veteran's headache disorder. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2020 memorandum decision vacated the Board's February 2019 decision and remanded the case to the Board. This case was last before the Board in July 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Service connection for a headache disorder, to include migraines, is remanded. The Board finds that a new opinion is warranted for the Veteran's claim. Following the Board's July 2019 remand, a new examination and opinion was obtained. In October 2021, a VA examiner opined that it was it was less as likely as not that the current disability was due to or proximately caused by service. In arriving to their conclusion, the examiner noted that the "the lack of recorded symptoms or seeking care in this case is inconsistent with generally established disease process." The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Furthermore, although the examiner provided a negative opinion, the examiner qualified their statement by stating that while they accepted that the Veteran's headaches existed prior to 1991, without any supporting evidence, the examiner would be resulting to mere speculation as to the etiology and chronicity of the Veteran's headaches. This statement is seemingly at odds with the negative opinion the examiner provided and further underscores the need for a new examination. Finally, the Board notes that the examiner was asked to find the Veteran's statements of inception of headaches to be credible. However, the examiner, while stating that the Veteran's statements were accepted as per the Board remand, proceeded to question the credibility of said statements. Given the above, the opinion is inadequate and a new opinion is needed. The matters are REMANDED for the following action: 1. Assist the Veteran with uploading updated treatment records. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. Following the review of the record, the physician should provide a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's currently diagnosed headache disability originated during service or is otherwise etiologically related to the Veteran's active service. In providing this opinion, the examiner must accept that the Veteran experienced headaches prior to the June 10, 1993, post-service motor vehicle accident, as documented by the February 20, 1993, private treatment record. For purposes of the opinion, the physician should assume that the Veteran's statements are credible. The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion(s). 3. If upon completion of the above the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.