Citation Nr: 21015536 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-24 577 DATE: March 17, 2021 REMANDED Entitlement to service connection for a headache disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1990 to February 1994. He is a Persian Gulf veteran as he had qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(e). In March 2019 and October 2020, the Board remanded the claim for further development. Unfortunately, remand is again required. Entitlement to service connection for a headache disability, to include as secondary to service-connected disabilities, is remanded. In its March 2019 decision, the Board remanded the Veteran’s claim for entitlement to service connection for a headache disability, in part, to obtain a VA medical opinion. As directed, the agency of original jurisdiction (AOJ) obtained a February 2020 VA medical opinion regarding the Veteran’s asserted headache disability. However, in its October 2020 decision, the Board found the February 2020 VA medical opinion inadequate for several reasons, including that the VA examiner failed to provide an adequate rational to support his conclusions, that he failed to provide a meaningful discussion or reconciliation of prior negative findings, and that he failed to provide a meaningful discussion of the lay statements of record. Further, when rendering an opinion regarding secondary service connection, the VA examiner based his opinion on causation but did not address aggravation. On remand, the Board directed that a new VA medical opinion be obtained addressing the Veteran’s headache disability on presumptive, direct, and secondary service connection bases. Although December 2020 VA medical opinions were obtained, the medical opinions, however, are inadequate for the reasons discussed herein. When discussing presumptive service connection, the VA examiner noted that there was no evidence of objective indications of a disability and stated that the only notation of headaches in the Veteran’s VA treatment records occurred in September 2014. However, a review of the claims file shows that this finding is inaccurate. Indeed, VA treatment records show numerous complaints of headaches – including in January 2014, June 2016, November 2017, and January 2018. Based upon this inaccurate factual premise, the VA examiner concluded that presumptive service connection was not warranted for the Veteran’s headache disability. However, an adequate medical opinion must be “accurate and fully descriptive,” 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Moreover, when addressing entitlement to service connection on a secondary basis, the VA examiner appears to have based her opinions regarding aggravation primarily on the absence of treatment records noting complaints of or treatment for “frequent debilitating headaches” without providing an explanation as to why the absence of treatment records bears weight on finding that aggravation had not occurred. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Lastly, the December 2020 VA medical opinions are inadequate because they, again, do not reflect a meaningful discussion of the Veteran’s lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate”). In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. In this regard, the October 2020 Board remand directives provided that the examiner must, in determining whether the Veteran’s service-connected disability aggravated his headache disability, “consider the Veteran’s reports that his headaches worsen during periods of stress and high blood pressure.” See October 2020 BVA Decision. The opinions of record, however, do not reveal any meaningful discussion or reference of the lay evidence nor do they address if there is a medical basis to support or doubt the history provided by the Veteran. For the foregoing reasons, the Board may not rely upon the December 2020 VA medical opinions in their present form and, therefore, finds the opinions are inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board must again remand the claim and direct the AOJ to obtain an adequate VA addendum medical opinion. The matters are REMANDED for the following action: 1. Obtain all VA treatment records dated from December 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician, other than J.P., the VA clinician who provided the December 2020 VA addendum medical opinions, regarding the Veteran’s headache disability. The claims file should be sent to and reviewed by the clinician. If in the opinion of the reviewing clinician the questions below cannot be answered without an in-person or virtual examination or interview, such should be scheduled. The opinion should reflect consideration of the Veteran’s documented relevant history and assertions, to include that his headaches disability is proximately due to or the result of service in the Southwest Asia theater of operations during the Persian Gulf War. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion. Upon review of the file, the clinician is asked to respond to each of the following: Presumptive Service Connection (a) Identify the Veteran’s objective indications of a disability. Note: “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Non-medical indicators include evidence such as time lost form work, the Veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? Note: If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? Note: The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. (e) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? Note: This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. Direct Service Connection (f) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, manifested to a compensable degree within one year after service discharge in February 1994, or is otherwise related to his active service? Consider and expressly address the Veteran’s theory that his headaches stem from service in the Persian Gulf, in which he was exposed to contaminants, pollutants, and/or toxins. Secondary Service Connection In addressing the below opinions, consider and comment on the Veteran’s lay reports that his headaches worsen during periods of stress and high blood pressure. If there is a medical basis to doubt the history provided by the Veteran, this must be discussed in detail. Also, a rationale should be provided that deals with causation and aggravation as independent concepts. (g) Whether any headache disability is at least as likely as not (a 50 percent or greater probability) (i) proximately due to service-connected PTSD, or (ii) aggravated beyond its natural progression by service-connected PTSD. (h) Whether any headache disability is at least as likely as not (a 50 percent or greater probability) (i) proximately due to service-connected irritable bowel syndrome (IBS), or (ii) aggravated beyond its natural progression by service-connected IBS. (i) Whether any headache disability is at least as likely as not (a 50 percent or greater probability) (i) proximately due to service-connected hypertension, or (ii) aggravated beyond its natural progression by service-connected hypertension. If aggravation is found, the examiner should address the baseline manifestations of the Veteran’s headache disability found prior to aggravation; and the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability. All opinions should be supported by a medical explanation or rationale. Further, if any of the clinician’s findings or conclusions conflict with those of September 2015, February 2020, and/or December 2020 VA examination reports, the clinician is asked to attempt reconcile their findings with those of the previous VA examiners. Lastly, if the clinician relies on the absence of treatment records as a basis for their rationale, then they must fully explain why the absence of treatment records bears weight on the opinion. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. ERIC MINE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.