Citation Nr: 21008084 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 12-19 278 DATE: February 11, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to November 1978. These matters came to the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in November 2014, November 2016, and November 2019, on which occasions the claims were remanded. The Veteran testified at a video conference hearing in July 2013 before a Veterans Law Judge (VLJ); a transcript is of record. The Veteran testified at a Travel Board hearing in April 2019 regarding the same issues before a different VLJ; the transcript is of record. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In October 2019, the Board sent a letter to the Veteran informing her of the option to have an additional hearing before a third VLJ. 10/02/2019 BVA-General. The letter informed her that failure to respond within thirty days would result in the Board assuming that she did not want a third hearing. The Veteran did not respond, thus her option to have a hearing in front of a third VLJ is deemed waived. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). A third VLJ has been empaneled and will participate in this Panel Decision, satisfying the applicable laws and regulations. See 38 U.S.C. § 7102(a); Arneson, 24 Vet. App. at 386; 38 C.F.R. § 20.604. As detailed in the November 2019 Board Remand, the Veteran asserts that her migraine headaches and hypertension are due to or aggravated by medication taken to treat her service-connected bipolar disorder. It was also explained that no examiner had addressed whether migraine headaches or hypertension are due to or aggravated by insomnia, which is a symptom of her service-connected bipolar disorder. Thus, the issues were remanded for opinions. Hypertension In December 2019, the Veteran underwent a C&P examination regarding hypertension. The question posed to the examiner on the examination worksheet was whether the Veteran’s hypertension was aggravated beyond its natural progression by her service-connected bipolar disorder. The examiner stated the following: Although there is medical literature (NIH: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4411016/) that supports anxiety increasing the risk of hypertension. There is noted in c files a Diagnosis of Hypertension being recorded on 11/13/2007 on page 33-34 and Diagnosis and connection of Bipolar Disorder with psychosis on 2/4/2008. The Hypertension preceded the Bipolar with psychosis to include anxiety disorder, therefore it is least likely than not that bipolar I disorder with psychosis (also claimed as insomnia secondary to depression) (previously rated as depressive disorder, to include specified anxiety disorder) was aggravated however due to the hypertension preceding the bipolar and the claimants age it is less likely than not it was aggravated beyond its natural progression. Initially, the Board notes that the query posed to the examiner is incorrect, as the question to the examiner should have been whether hypertension is caused by or aggravated by medication taken for her bipolar disorder. The worksheet does not contain the query as to whether hypertension is proximately due to or aggravated by insomnia, a symptom of her bipolar disorder; nor does the worksheet contain the query regarding a relationship between her hypertension and migraine headaches. The examiner only addressed whether hypertension was aggravated by her bipolar disorder and did not address any relationship to her medication taken for her bipolar disorder nor any relationship to insomnia. Thus, such opinion is insufficient, and remand is necessary. Migraine headaches In December 2019, the Veteran underwent a C&P examination regarding her migraine headaches. The question posed to the examiner on the examination worksheet was whether the Veteran’s headaches are aggravated beyond its natural progression by her service-connected bipolar disorder. The examiner stated the following: Although there is medical literature (NIH: https://www.ncbi.nlm.nih.gov/pubmed/26886355/) (https://www.ncbi.nlm.nih.gov/pubmed/29299439) that supports migraines common in those with comorbidities, depression, anxiety, and bipolar disorders. There is noted in c files a Diagnosis of Hypertension being recorded on 11/13/2007 on page 33-34 and a Diagnosis of and connection of Bipolar Disorder with psychosis on 2/4/2008 page 33-34. Although there may have been some aggravation of migraine headaches it is less likely than not it was aggravated beyond its natural progression by bipolar I disorder with psychosis (also claimed as insomnia secondary to depression) (previously rated as depressive disorder, to include specified anxiety disorder) due to other comorbidities existing such as Hypertension and claimants age it is less likely than not it was aggravated beyond its natural progression. As above, the query posed to the examiner is incorrect, as the question to the examiner should have been whether her migraine headaches are proximately due to or aggravated by medication taken for her bipolar disorder. The worksheet does not contain the query as to whether her migraine headaches are proximately due to or aggravated by insomnia, a symptom of her bipolar disorder; nor does the worksheet contain the query regarding a relationship between her migraine headaches and hypertension. The examiner only addressed whether migraine headaches are aggravated by her bipolar disorder and did not address any relationship to her medication taken for her bipolar disorder nor any relationship to insomnia. Moreover, the examiner referenced hypertension when the opinion was to be regarding the etiology of her migraine headaches. Thus, such opinion is insufficient, and remand is necessary. The matters are REMANDED for the following actions: 1. Request that an examiner with appropriate expertise review the claims folder and respond to the following with regard to the Veteran’s claimed hypertension: a) Is hypertension at least as likely as not (50 percent or greater probability) caused by medication taken for her service-connected bipolar disorder? b) Is hypertension at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by medication taken for her service-connected bipolar disorder? c) Is hypertension at least as likely as not (50 percent or greater probability) caused by insomnia, a symptom of her service-connected bipolar disorder? d) Is hypertension at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by insomnia, a symptom of her service-connected bipolar disorder? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the hypertension prior to aggravation by the medication taken for her bipolar disorder or insomnia. Please note, causation and aggravation are separate concepts and must be addressed independently. e) Should the examiner conclude that the Veteran’s hypertension is not caused by or aggravated beyond its natural progression, by the medication taken for her bipolar disorder or insomnia, the examiner should opine on whether hypertension is at least as likely as not (50 percent or greater probability) caused by, or aggravated beyond its natural progression by, migraine headaches. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the hypertension prior to aggravation by the migraine headaches. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Request that an examiner with appropriate expertise review the claims folder and respond to the following with regard to the Veteran’s claimed migraine headaches: a) Are migraine headaches at least as likely as not (50 percent or greater probability) caused by medication taken for her service-connected bipolar disorder? b) Are migraine headaches at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by medication taken for her service-connected bipolar disorder? c) Are migraine headaches at least as likely as not (50 percent or greater probability) caused by insomnia, a symptom of her service-connected bipolar disorder? d) Are migraine headaches at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by insomnia, a symptom of her service-connected bipolar disorder? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the migraine headches prior to aggravation by the medication taken for her bipolar disorder or insomnia. Please note, causation and aggravation are separate concepts and must be addressed independently. e) Should the examiner conclude that the Veteran’s migraine headaches are not caused by or aggravated beyond its natural progression, by the medication taken for her bipolar disorder or insomnia, the examiner should opine on whether migraine headaches are at least as likely as not (50 percent or greater probability) caused by, or aggravated beyond its natural progression by, hypertension. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the migraine headaches prior to aggravation by the hypertension. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.