Citation Nr: 21021571 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-02 005 DATE: April 13, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran had active naval service from December 1967 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a VA Regional Office (RO). This appeal was previously before the Board in October 2018, at which time the Board reconsidered and remanded the previously denied service connection claim for headaches. The Veteran has contended that his headache disability is related to his active service. Specifically, he reported that his headache disability began after he was exposed to hazardous noise during service. He explained that he has taken over-the-counter medication for his headaches since his separation from service. Alternatively, he asserted that his headache disability developed as secondary to his service-connected tinnitus. VA has conceded that the Veteran sustained acoustic trauma manning shipboard guns. The Veteran’s service treatment records (STRs) documented that he reported a history of frequent or severe headaches at the time of his December 1967 enlistment examination. The report included a clarification that he had occasional headaches. Notably, the Veteran’s head and neurologic evaluations were within normal limits at entry; thus, for purposes of this remand, the Veteran is presumed to have been in sound condition with respect to headaches at the time of his entrance into active service. Following the Board’s October 2018 remand, the Veteran was afforded a new VA examination in October 2019. He reiterated that he had a history of headaches prior to service, but that they were infrequent and not severe. He maintained that his current type of headaches initially began after exposure ot loud noises in a gun mount during service. In the examination report, the examiner opined that the Veteran’s diagnosed migraine disability was less likely than not incurred in or caused by his active service. She noted, in part, that there was enlistment examination evidence that the Veteran experienced headaches prior to entry into service; however, she observed that there was no evidence that the Veteran had ongoing headaches throughout service. Additionally, the examiner opined that the Veteran’s headache disability was less likely than not proximately due to or the result of his service-connected tinnitus. She acknowledged that tinnitus and headaches may occur concurrently but, found no medical evidence supporting tinnitus as a cause of headaches. She explained that the Veteran’s headaches pre-existed his tinnitus given that his headaches reportedly began prior to service. She concluded that there was no plausible secondary relationship. The Board finds the December 2019 VA examiner’s opinion to be inadequate for adjudication purposes. In this regard, the examiner did not address the Veteran’s acoustic trauma from manning shipboard guns during service, nor his assertion that he experienced a different type of headache following his in-service hazardous noise exposure as compared to headaches that he suffered prior to service. Moreover, the examiner did not substantially comply with the Board’s October 2018 remand directives which specifically directed that, for purposes of the examination, the examiner must presume that the Veteran’s headaches did not preexist his active service. Additionally, the Board directed that the examiner must provide an opinion as to whether the Veteran’s headaches were aggravated by tinnitus, and the examiner did not provide this opinion. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the inadequacies noted in the December 2019 VA addendum opinion, the Board finds that remand is warranted to obtain a new VA addendum opinion. The matter is hereby REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, arrange for the Veteran’s claims file to be reviewed by a new VA examiner, preferably one with expertise in evaluating neurological disabilities, to obtain a new opinion as to the etiology of the Veteran’s headache disability. The claims file and a copy of this REMAND must be made available to and reviewed by the examiner. If a new VA examination is deemed necessary, then one should be scheduled. Based on the review of the record, and any new examination, the examiner should provide a new opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran’s current headache disability had its onset during service, or is otherwise medically-related to his active service, to specifically include acoustic trauma, including from manning shipboard guns. If the Veteran’s current headache disability is not at least as likely as not etiologically related to his active service, the examiner should then provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected tinnitus. For purposes of providing these opinions, the examiner must presume that the Veteran’s headache disability did not preexist his entry into active service. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s assertion that he experienced a different type of headache following his in-service hazardous noise exposure, as compared to headaches that he suffered prior to service, and his lay assertions as to the nature, onset, and continuity of his current headache symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The rationale for all opinions expressed must be provided. 3. Confirm that the VA opinions provided comport with this remand, undertake any other development determined warranted, and readjudicate the appeal. Thereafter, if indicated, return the appeal to the Board. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.