Citation Nr: 21005265 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-30 506 DATE: February 1, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to May 1971, and from October 1974 to October 1976. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2019, the Board denied the issues listed above; the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both the Veteran and the VA Secretary, vacating the Board’s decision as to the denial of service connection for headache and back disabilities, and remanding the claims to the Board for further proceedings consistent with the JMPR. Headaches The JMPR found that the January 2016 VA examination relied upon by the Board was based on an inaccurate factual premise and was therefore inadequate. Namely, the examiner indicated that the Veteran’s service treatment records were silent for headaches, and that he did not have any scars related to non-migraine headaches. However, service treatment records note complaints of headaches and a head or facial injury. Additionally, the Veteran is service-connected for residuals of a laceration of the right lower lip attributable to his facial injury, evaluated as a scar. Accordingly, the Board finds that an addendum opinion, which considers the above, is warranted. Back Disability The Veteran contends that his claimed back disorder is due to carrying heavy items in service, including 90-pound computer systems up and down ladders and bombs for loading. The JMPR found that the Board erred when it found that a medical opinion was not warranted because there is no evidence of in-service complaints. In particular, the JMPR interpreted that the Board found the Veteran’s lay statements of having pain since service credible, and that such could satisfy the in-service prong of an event to warrant a VA opinion. A closer reading of the June 2019 Board decision shows that it does not expressly find that the Veteran’s lay statements of having pain since service are credible, but instead that his complaints of back pain 2012 and 2015 were credible. However, as the Board finds that the Veteran has a current back disorder, and that carrying heavy items in service was consistent with his duties, a VA examination and opinion is in order. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional to obtain an addendum opinion regarding the Veteran’s claimed headaches. The claims file must be reviewed, and such review should be noted in the opinion. An additional VA examination may be provided if deemed appropriate. The examiner is asked to opine on the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s headaches are related to service, to include his documented in-service headaches or facial injury? All opinions expressed should be accompanied by supporting rationale. A medical opinion based solely on the absence of documentation of symptoms in the record is inadequate. If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge. 2. Afford the Veteran a VA examination with an appropriate medical professional to determine the nature and etiology of his back disorder. The claims file, including a copy of this remand, should be provided to the examiner, and the examiner should indicate that the Veteran’s records have been reviewed. The examiner is asked to opine on the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s back disorder is related to service, to include carrying heavy objects, including 90-pound computers and bombs? In offering any opinion, the examiner must consider the lay statements of record. All opinions expressed should be accompanied by supporting rationale. A medical opinion based solely on the absence of documentation of symptoms in the record is inadequate. If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., 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.