Citation Nr: 21024974 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-19 498 DATE: April 27, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from April 2005 to June 2005, for a total of less than 90 days. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and February 2021, the Board remanded this matter for additional development. Unfortunately, another remand is required. 1. Entitlement to service connection for migraine headaches. A review of the Veteran’s medical record confirms she has a current diagnosis for migraine headaches, including migraine variants (7/24/2019 C&P Exam, pg. 2). Prior to service, the Veteran was clinically evaluated as normal during her March 2003 entrance examination, and no defects were noted (8/12/2014 STR – Medical, pgs. 25 and 27). She did not indicate having had pre-service headaches on her report of medical history (8/12/2014 STR – Medical, pg. 45; 8/12/2014 STR – Medical, pg. 30). During service, the Veteran reported having a period of headaches, lasting 7 days in April 2005 (8/12/2014 STR – Medical, pg. 29). In May 2005, the Veteran also reported frequent headaches (8/12/2014 STR – Medical, pg. 60). An in-service medical record from May 2005 reports the Veteran’s history of having a brain tumor as an infant that was not revealed upon entrance. The Veteran has also referred to the tumor as a blood tumor (8/12/2014 STR – Medical, pg. 66; 7/05/2013 CAPRI, pg. 2). Despite her denial of pre-service headaches during her entrance examination, since service, the Veteran has consistently described having had headaches all her life, having been diagnosed with migraines as a child, describing normal frequency and intensity of headaches prior to her service (7/24/2019 C&P Exam, pg. 2; 05/27/2014 Medical Treatment Record - Non-Government Facility, pg. 6; 7/05/2013 CAPRI). Of note, in association with a post-service complaint of worsening headaches and trouble with memory, the Veteran was afforded an October 2015 Brain MRI. The MRI revealed a finding of minimal nonspecific white matter disease (3/11/2021 CAPRI, pg. 42). The medical evidence of record does not address whether the MRI finding suggests a congenital disease or defect, and whether there is any relationship between the finding of nonspecific white matter disease and the Veteran’s described pre-service brain tumor or pre/in-service headache history. While disability compensation benefits administered by VA are available for congenital diseases, they are not available for congenital defects. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature," and VA does not consider congenital or developmental defects "diseases or injuries" within the meaning of applicable statutes and regulations. VAOPGCPREC 82-90; 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. Notwithstanding this distinction, service connection may be granted if the evidence shows aggravation of the congenital or developmental defects during service on account of a superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App, 240 (1995). Given the absence of medical evidence that the Board can consider and weigh against other evidence of record, a remand for a new opinion is required. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. TDIU. The claim for a TDIU is intertwined with the service connection claim for migraine headaches. A potential grant of service connection for the claim, and any statement made by the examiner on the impact of headaches, if service connected, on employability would affect adjudication of the TDIU issue. Accordingly, TDIU claim is also remanded. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of any existing headache disorder or disability and nonspecific white matter disease. The examiner should review the entire claims file and this remand in conjunction with the examination. The examiner should specifically address a) Whether it at least as likely as not any nonspecific white matter disease (exclusive of the congenital defect) was incurred during or due to active service, to include whether such disability was caused by, or aggravated by, any service-connected disabilities? b) Whether the Veteran’s nonspecific white matter disease is an abnormality considered a disease (capable of getting better or worse) or a defect (a static condition)? c) If the examiner determines that the Veteran's nonspecific white matter disease is a congenital disease, opine whether the disability (i) clearly and unmistakably existed prior to his active service and (ii) clearly and unmistakably was not aggravated by service. d) If considered a disease, and it is as likely as not that the nonspecific white matter disease was aggravated (increased in severity beyond natural progression) by active service, did this aggravation manifest in increased severity of headaches? If so, please estimate the baseline level of disability prior to such aggravation. e) If considered a defect, does the Veteran have any superimposed disabilities due to the nonspecific white matter disease, to include headaches? If so, is it as likely as not that any superimposed disability was due to an event or illness during active service? Note to the examiner(s): “Defects” are usually static in nature, so not generally subject to episodic improvement or worsening, whereas the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The examiner is reminded to consider the Veteran’s lay reports, and a reason must be provided if the Veteran’s lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran’s contentions with regard to headaches and brain tumor in infancy, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. The examiner should reconcile any conflicting medical evidence of record to the extent possible. A comprehensive rationale for all opinions expressed must be provided. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.