Citation Nr: 21007393 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-28 729 DATE: February 9, 2021 REMANDED Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968 and from March 1982 to March 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020 the Board remanded the issues on appeal for additional development. Most recently, in November 2020, the Board remanded the issues on appeal for additional development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Regrettably, more development is still necessary for the Veteran’s claims of entitlement to service connection for headaches. Entitlement to service connection for headaches is remanded. The Veteran seeks entitlement to service connection for headaches. He contends that he began experiencing headaches in the 1980’s during service. The Veteran received treatment during service for his headaches on numerous occasions. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran’s headache disability. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2018, the Veteran underwent an LHI headaches examination. The examiner indicated that in 1985 the Veteran obtained a diagnosis of migraines including migraine variants. The Veteran reported that he randomly started getting frequent headaches, and he thought they were seasonal allergies. The Veteran also reported that in April 2015, he fell and hit his head, and developed a hematoma. His headaches became more frequent and intense. The Veteran indicated that at times he has to lay down, which made it clear to him that his headaches were not sinus or allergy related. The examiner opined that the Veteran’s headaches are less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event or illness. The examiner’s rationale was that there was no medical evidence found to support headaches during service in the records provided. However, the examiner apparently did not have access to all of the records because the examiner indicated that the Veteran did not seek treatment in service, even though there are notations within the Veteran’s service treatment records for treatment. In October 2018, the Veteran underwent an examination to determine if the Veteran’s headache condition was related to his service-connected hypertensive vascular disease. The examiner opined that the Veteran’s headache condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s hypertensive vascular disease. As to the rationale, the examiner stated that the two conditions are not medically related, and that the medical literature does not support a medical relationship. However, the examiner did not opine to whether the Veteran’s hypertensive vascular disease aggravated the Veteran’s headache condition. A medical opinion as to secondary service connection is inadequate for the Board’s decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner’s determination that the disease or injury at issue is not “related to” the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. In November 2018, the Veteran underwent a VA examination for headaches. The Veteran reported that he just gets headaches, and his wife indicated that “he gets it bad and it won’t even respond to Flonase.” The Veteran reports he had symptoms for years but, indicated that he did not have any symptoms on the day of the examination. The examiner noted that the Veteran reported having headaches occur once or twice a month. The examiner explained that there is no current disability because a diagnosis of headaches relies entirely on subjective reports of symptoms and the Veteran is not credible in regard to his subjective reports, as they differ from how he presents in the objective medical treatment records. The examiner explained that the Veteran’s prior headache diagnosis was based on historical details which are not corroborated by the records or other medical evidence, including VA progress notes less than two months earlier; and the history provided by the contract examiner less than a month ago even differs from the current historical iteration. The November 2018 examiner states that there is no diagnosis because there is no pathology on which to render a diagnosis. The examiner opined that the Veteran’s migraine headaches, which he noted were erroneously diagnosed are (less likely than 50 percent probability) “incurred in or caused by (the) complaints (possibly related to hypertension) during service.” The examiner also stated that, If we stipulate that the Veteran does have migraines, as diagnosed by the contract examiner, it is noted that the Veteran's headache pattern changed after he sustained a head injury of sufficient severity to cause the Veteran to develop a subdural hematoma. The headache pattern described differed from that which was noted in service. Head trauma may be associated with post-traumatic migraine. The Veteran was noted to have tension headaches in service. These were not and would not be expected to be disabling. If we assume that the Veteran's history is true (that he has to lie down with his headaches because they are so severe - and I'm not making this assumption), then the headaches that he currently describes are more likely than not the result of the head trauma with subdural hematoma. In December 2020, VA secured an addendum opinion regarding the Veteran’s headache condition. The examination form used the pre-existing conditions standard incorrectly instead of the secondary-service connection standard. The examiner noted that the Veteran did not have a pre-existing headache condition prior to service. However, there was no correction of the standard when the examiner checked the boxes designating that the Veteran’s headaches “which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” In addition, the aggravation opinion included the incorrect standard of “permanent” aggravation. The proper standard is whether there is any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. “Permanent” worsening is not required. 38 C.F.R. § 3.310(b), Ward v. Wilkie, Nos. 16-2157, 17-1204, 2019 U.S. App. Vet. Claims LEXIS 994 (Vet. App. June 14, 2019). The examiner acknowledged considering the Veteran’s lay testimony, but the examiner does not explain why she discounted them. The Board cannot make a fully informed decision on the issue of the Veteran’s headache condition because no VA examiner has opined whether the Veteran’s headaches were aggravated by his service-connected hypertensive vascular disease using the proper standards. Therefore, the claim must be remanded in order to obtain an opinion regarding aggravation. The matters are REMANDED for the following action: 1. If possible, return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the VA examiner who reviewed the file and provided the December 2020 medical opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file and a copy of this remand to another appropriate medical professional who has the requisite experience to render the requested medical opinion. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine: Whether the Veteran’s headache condition is at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected hypertensive vascular disease, and (2) aggravated beyond its natural progression by his service-connected hypertensive vascular disease. (Does not need to permanently worsen). A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not “caused by,” “a result of,” or “secondary to” another disability does not answer the question of aggravation and will necessitate a further opinion. (Continued on the next page)   3. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.