Citation Nr: 21009386 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-46 019 DATE: February 22, 2021 ORDER Service connection for chronic headaches associated with service-connected tinnitus is dismissed. REMANDED Service connection for Attention Deficit Disorder (ADD) is remanded. FINDING OF FACT During the pendency of this appeal, service connection for chronic headaches was granted by an August 2020 rating decision. CONCLUSION OF LAW The criteria for dismissal of service connection for migraine headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1997 to October 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This matter was previously before the Board and remanded for further development in October 2019. Specifically, this matter was remanded to obtain an opinion addressing its etiology. Although development has been completed, the Board finds the post-remand opinion to be inadequate and an addendum opinion is warranted. The Board notes that at the time this appeal was previously before the Board, the appeal included a claim of service connection for chronic headaches. However, that matter has since been granted in full and is therefore no longer before the Board for adjudication. Further, the Board acknowledges the November 2020 Court of Appeals for Veterans Claims (CAVC) Order granting a Joint Motion for Partial Remand (JMPR). In December 2020, the Board issued a 90-day letter to the Veteran and his representative notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. Accordingly, the matters remanded by the JMPR will be adjudicated upon expiration of the 90-day period. REASONS FOR REMAND Service connection for Attention Deficit Disorder (ADD) is remanded. Remand is required for a clarification opinion. Where VA provides the veteran with an examination or opinion in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At a December 2019 VA examination, the examiner indicated that due to the evidence of mental health treatment for unspecified ADD throughout the years, and the lack of evidence of mental health treatment prior to service, the Veteran’s ADD is at least as likely as not incurred in or caused by military service. In a later section, the examiner checked the option which states the Veteran’s ADD clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by service. The rationale explained that there is no evidence of record which reveals a diagnosis of ADD prior to service despite the 2017 VA examination noting the Veteran’s report that he took Ritalin as a child due to his diagnosed ADD. The rationale went on to highlight the fact that the Veteran denied any mental health treatment, diagnosis, or complaints prior to military service upon induction, and was thus presumed sound for mental health diagnoses upon entrance. Accordingly, the examiner opined it is less likely than not the Veteran’s ADD did not exist prior to service, and clearly and unmistakably not aggravated beyond its natural progression during service. First, the Board points out the contradiction of the December 2019 opinion. First, the examiner finds the Veteran’s ADD is at least as likely as not incurred in or caused by military service. Then, within the same opinion, the examiner finds that the Veteran’s ADD clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by service. Moreover, the rationale does not match the conclusion, and the result is unclear on whether the examiner opines that the Veteran’s ADD clearly and unmistakably existed prior to service, or incurred in service. Accordingly, remand is required for clarification. The matters are REMANDED for the following action: 1. After any additional records are associated with the claims file, obtain an addendum opinion from the same examiner who authored the December 2019 opinion. If the same examiner is not available, the AOJ should arrange for another appropriate physician to provide an addendum opinion, based on file review (if possible). The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner should address the following questions: (a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s ADD existed prior to his entry into active service in January 1997? In making this determination, the examiner should consider the August 2015 private neuropsychological evaluation from Doug Johnson-Greene. The examiner should be sure to select the option most applicable to their rationale. (b) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that the Veteran’s ADD was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression during the Veteran’s active service, as based on sound medical principles? Temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. As noted, a rationale based on the Veteran’s claims file and sound medical principles is required. (c) If the examiner determines that the Veteran’s ADD did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably aggravated by service, state whether it is at least as likely as not (50 percent or greater degree of probability) that it began in service, was caused by service, or is otherwise related to military service. 2. After completing the directives above, the RO should readjudicate the claim on appeal. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate consideration. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.