Citation Nr: 21013770 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-12 291 DATE: March 10, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1966 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. In January 2019 this matter was remanded by the Board for additional consideration and development. See January 2019 Board Remand. Regrettably, for the reasons noted below, the Board finds another remand is required. Entitlement to service connection for migraine headaches is remanded. First, as previously stated in the Board’s January 2019 prior remand, the Veteran’s October 1965 enlistment examination shows that he has headaches due to a neck sprain that has been ongoing since 1965, prior to the Veteran’s active duty service. His headaches are therefore considered a pre-existing disorder that was “noted” upon entry to service. See 38 C.F.R. § 3.385. Under VA law, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Therefore, the proper standard to be used by an examiner for this aggravation claim is whether there is clear and unmistakable evidence demonstrating that the Veteran’s pre-existing headaches were not aggravated by his military service. Second, there has not been substantial compliance with the Board's January 2019 remand directive regarding the issues of service connection for migraine headaches based on the Veteran’s contention that he was experiencing chronic headaches throughout service, and that his service treatment records reflect headache symptoms in October 1966 associated with a pneumonitis viral infection. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s January 2019 remand directive instructed the VA examiner to provide an aggravation opinion to include a discussion of the Veteran's documented medical history and assertions, including the October 1966 service treatment record, which documents headache symptoms. The remand directives also specifically stated that the VA examiner must consider other competent lay statements from the Veteran regarding chronic headaches in service, and the April 2013 Medical Opinion from Dr. P.J.Y., who found that the Veteran’s headaches were chronic in service. However, while on remand, the October 2020 VA opinion did not specifically address the Veteran’s lay reports of chronic headaches in service. The examiner instead stated “[Service Treatment Records] STRs DO NOT document any type of chronic or recurrent headache condition. The single episode of headache while on active duty was attributed to a viral URI. I disagree with April 2013 opinion that headaches in service were chronic.” See October 2020 VA Disability Benefits Questionnaire. No rationale was provided. Thereafter, a December 2020 VA addendum opinion was obtained, to address the January 2019 remand directives. However, the examiner again failed to comment on the Veteran's statements of chronic headaches in service. Instead, the examiner again relied on the lack of treatment in finding the pre-existing headaches were not chronic during service, also the examiner failed to provide an opinion as to aggravation of the Veteran’s preexisting headaches. The lack of evidence of treatment alone cannot serve as a rationale to deny service connection, especially in light of the Veteran's complaints of chronic headaches. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (mere absence of medical records does not contradict a veteran's statements about his symptom history). On remand, an addendum opinion is needed to determine whether there is clear and unmistakable evidence demonstrating that the Veteran’s pre-existing headaches were not aggravated by his military service and consider his lay contentions of chronic headaches. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician, OTHER than the clinician that conducted the December 2020 VA examination. The examiner is asked to opine: (a.) Is there clear and unmistakable evidence demonstrating that the Veteran’s pre-existing headaches were not aggravated by his military service and due to the natural progression of the disease ? (b.) The opinion of aggravation MUST be based on the Veteran’s claims file and consider and address: (i) THE VETERAN’S LAY STATEMENTS THAT HE HAD HEADACHES DURING SERVICE. (ii) Are the Veteran’s assertions consistent with medical knowledge or implausible. Please explain why or why not? (iii) The April 2013 Medical Opinion from Dr. P.J.Y., who found that the Veteran’s headaches were chronic even in service. (c) if aggravation is beyond the natural progression of the disease, is it at least as likely as not related to the Veteran’s current disability. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO REPORT HIS SYMPTOMS AND HISTORY, AND SUCH REPORTS MUST BE ACKNOWLEDGED AND CONSIDERED IN FORMULATING ANY OPINION. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. THE EXAMINER SHOULD ADDRESS ANY AND ALL TREATISES OF RECORD. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.