Citation Nr: 21022919 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-04 166A DATE: April 19, 2021 REMANDED Entitlement to an initial compensable rating for tension headaches prior to September 28, 2020, and in excess of 50 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1991 to April 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In December 2019, the Board remanded the issue on appeal to the AOJ for additional development. In October 2020, after taking further action, the AOJ increased the rating for tension headaches from 0 (zero) to 50 percent, effective September 28, 2020. The issue of entitlement to service connection for hypertension (claimed as high blood pressure) was previously on appeal. In its October 2020 rating decision, the AOJ granted service connection and a 20 percent rating for hypertension. In a March 2021 Informal Hearing Presentation, the Veteran’s representative advanced argument as to the issue of the Veteran’s entitlement to a rating in excess of 20 percent for hypertension. The Board notes, however, that the October 2020 award of service connection for hypertension represented a full grant of the benefit sought on appeal with respect to that issue. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). As such, the hypertension claim is no longer in appellate status. If the Veteran wishes to pursue an appeal as to the rating for hypertension, he and/or his representative may still do so by filing a VA Form 10182 within one year of the date of the mailing of the notice of the October 2020 decision, which would be October 20, 2021. Because the development sought in the December 2019 has not been fully completed, as discussed below, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). Entitlement to an initial compensable rating for tension headaches prior to September 28, 2020, and in excess of 50 percent thereafter, is remanded. In its December 2019 remand, the Board directed the AOJ to ask the Veteran to identify and provide appropriate releases for records of private treatment providers who had treated him for the issue(s) on appeal, to ask the Social Security Administration (SSA) to provide copies of any records in its possession, to obtain updated VA treatment records, and to afford the Veteran a new VA examination in connection with his claim. In January 2020, the AOJ sent the Veteran a letter asking him to identify and provide a release for records from private treatment providers. Later that same month, the Veteran provided a release and identified several private providers and/or facilities along with the approximate dates of treatment for each provider and/or facility. The private providers and/or facilities identified by the Veteran included E.C., M.D. who treated him in 2019, Jackson Hospital where he was treated in 1994, Thomasville Hospital where he was treated in 1996, Knollwood Park Hospital where he was treated in 1998, U.S.A. Medical Center where he was treated in 1997, and Mobile Infirmary Medical Center where he was treated in 2008. In March 2020, the AOJ received correspondence from Thomasville Hospital and Jackson Hospital, both of which stated they had no records for the Veteran. The AOJ also attempted to obtain records from Knollwood Hospital in March 2020, but it noted that the number was disconnected, and that it was unable to find additional contact information. That same month, the Veteran submitted a document in which he stated that he had tried to get medical records from the hospitals he had identified before, but that they had told him that they got rid of anything after five years. In April 2020, the AOJ obtained and associated with the claims file Dr. C.’s records and updated VA treatment records. In January 2020, it obtained SSA records. In light of the above, the Board finds that the AOJ at least substantially complied with the December 2019 remand directives regarding records development. See Stegall, supra. The Board further finds, however, that the AOJ did not substantially comply with its remand directives regarding a new VA examination. Id. In its December 2019 remand, the Board noted that an August 2013 VA examiner opined that the tension headaches that the Veteran had in service were presently controlled, and that his current headaches were frontal and distinct in type from his service-related tension headaches. It further noted that a subsequent VA examiner in June 2016 made no such distinction. In its remand directives, the Board specifically instructed the examiner that if was his or her opinion that it was more likely than not that the Veteran suffered from headaches that were separate or distinct in type from his service-related tension headaches, a complete rationale for that conclusion must be provided. It also specifically instructed the examiner to disregard the ameliorative effects of medication. The AOJ afforded the Veteran a new VA examination in connection with his claim in September 2020. The examiner found that the Veteran had diagnoses of both migraine and tension headaches. She noted the date of diagnosis for migraine headaches as 2013 and for tension headaches as 1991. Regarding tension headaches, she noted that at the onset of symptoms in 1991, the Veteran had 2 to 3 headaches per month which lasted for 12 to 24 hours. She further noted that current treatment included Tylenol, bedrest, being in a dark room, Botox injections, and propranolol, opined that the condition would moderately to severely impact the Veteran’s ability to work, and stated that his headaches were incapacitating. She further indicated that the Veteran had characteristic attacks of migraine/non-migraine headache pain once every month, and that he also had very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. In October 2020, the examiner provided an opinion as to whether the Veteran’s current migraine headaches were separate and distinct from his service-connected tension headaches. The examiner stated that considering the history as related by the Veteran, the current examination, the Board’s December 2019 remand letter, and a review of the records, it was her opinion that the Veteran’s current headache condition was separate in type from his service-related tension headaches. She reasoned that a neurology note from October 2012 indicated that the Veteran had a new onset of frontal headache associated with blurry vision for the last six months and that he was diagnosed at that time with migraines. She stated that this was 19 years after military separation, and that his presentation was different from the tension headaches which the Veteran had described as a squeezing type of pain originating in his neck and radiating to his occipital area over the last 20 years. She further stated that some patients suffered from mixed headaches syndrome, which was the combination or coexistence of tension headaches and migraine headaches, and that there was evidence to support a separate, distinct diagnosis. The Board finds that the September 2020 VA examiner did not differentiate between symptoms attributable to the Veteran’s service-connected tension headaches and his non-service-connected migraine headaches. The Board notes that it is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Given the VA examiner’s October 2020 opinion that the Veteran’s non-service-connected migraine headaches are separate and distinct from his service-connected tension headaches, a remand for an addendum opinion is warranted. The VA examiner should attempt to differentiate between the two conditions, if possible. Still further, it does not appear that the September 2020 VA examiner disregarded the ameliorative effects of medication when assessing the severity of the Veteran’s headache disability. See Stegall, supra. On remand, updated records of VA treatment should also be procured. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who examined the Veteran in September 2020. The examiner should review the expanded record. After reviewing the expanded record, examiner should differentiate the symptoms attributable to the Veteran’s service-connected tension headaches from those attributable to his non-service-connected migraine headaches, if feasible, to include a retrospective opinion on the matter back to October 2012 (when the Veteran’s claim was filed). If no such differentiation is possible, that should be noted. The examiner should also disregard the ameliorative effects of medication, providing her opinion as to the severity of the Veteran’s service-connected tension headaches without taking into account the effects of medication. If the September 2020 examiner is no longer employed by VA or is otherwise unable to provide the requested information, the information should be obtained from another qualified VA examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.