Citation Nr: 21025608 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-28 059 DATE: April 28, 2021 REMANDED Entitlement to service connection for chronic headaches is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from June 1966 to July 1969. The Veteran passed away in September 2013. The Appellant is his surviving spouse. In March 2016, the Agency of Original Jurisdiction (AOJ) determined that the Appellant met the basic eligibility for substitution as the Veteran’s spouse. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b). This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for tension headaches. The Veteran’s notice of disagreement (NOD) was received in October 2012. The RO issued the statement of the case (SOC) in May 2016, and the Veteran’s VA Form 9, substantive appeal was received in June 2016. In October 2018 the Board remanded the case to the RO for further development and adjudicative action. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a February 2021 Memorandum decision, the Court found that the Board’s remand of the issue of service connection for tension headaches was not a final decision and therefore the Court does not have jurisdiction over the issue. In a statement dated in September 2010, the Veteran stated that his legal name was being changed; the change in name is reflected in this decision. Entitlement to service connection for chronic headaches is remanded. The Appellant seeks service connection for headaches. Service treatment records show that in May 1968, the Veteran sustained fragment wounds to his neck, left temporal region, left chest wall, upper extremities and right knee as a result of a mortar blast in Vietnam. Following service, in a January 1976 lay statement, the Veteran stated that he had severe headaches which he attributed to the injuries he incurred from the mortar blast during service. Similarly, a VA examination report dated in December 2010 reveals that the Veteran reported experiencing severe headaches since the injury during service. The examiner opined that the headaches are more likely than not tension headaches and less likely than not secondary to the injury he had in service but provided no rationale for this opinion. In October 2018 the Board remanded the case for an addendum opinion addressing the etiology of the Veteran’s headaches, to include whether the Veteran’s headaches “were at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service-connected disability” to include PTSD and residuals of multiple shrapnel wounds and fragment wounds. An addendum VA medical opinion was obtained in October 2019. Regarding direct service connection, the examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. For rationale, the examiner stated that “available medical treatment records are negative for reports of headaches during active duty service from 1966-1969. A Statement in Support of Claim dated 01/27/1976 describes "severe headaches" as reported by the Veteran which were believed by him to be due to shrapnel wounds to the neck, however medically documented headaches during, or in the year following active duty service are not of record.” Therefore, the examiner concluded, a nexus between the Veteran’s self-reported headaches in 1976 and his active duty service cannot be established. Regarding secondary service connection, the examiner opined that the condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. For rationale, the examiner stated that “[r]etained shrapnel fragments in the soft tissue are typically encased by fibrotic tissue over time and pose no specific risk to adjacent joints or bony structures (ref, Science Direct, 2005, "Delayed reaction to shrapnel retained in soft tissue"). In the rare cases where shrapnel does cause a problem, soft tissue manifestations (e.g., abscesses, cysts, infections, inflammatory changes) are the manifestations of this.” The examiner noted that treatment records reveal dental infections/complications but stated that there is no medical documentation of headaches resulting from the Veteran’s dental issues in the available treatment records. The examiner then listed documents in the claims file wherein the Veteran reported experiencing headaches, including the 2010 and 2012 VA examinations wherein the examiner acknowledges that the Veteran reported that his headaches reduced in severity after dental procedures in 2004 to remove shrapnel fragments from his gums. The examiner concluded by stating that objective evidence of a chronic headache condition is not provided by the available record and that there is no clinical documentation of the quality, nature, location, frequency, character, duration, or severity of the claimed headaches to be able to determine the nature or etiology of the Veteran’s headaches during his lifetime. The examiner stated that as headaches can be a symptom of an array of environmental, medical, psychological, and/or physical conditions, it is impossible to state with any medical certainty what the etiology of the Veteran's subjective headaches was without resorting to speculation. The Board finds that the October 2019 VA medical opinion is incomplete and provides inadequate rationale. The opinion states that there is no medical documentation of headaches resulting from the Veteran’s dental issues but then notes that the Veteran reported that his headache symptoms improved after procedures to remove shrapnel fragments from his gums. While not necessarily indicative of a causal relationship, this discrepancy is never addressed by the examiner. Moreover, the VA examiner did not fully consider the Veteran’s reports of experiencing ongoing headaches during and since his separation from active service and relies on the absence of documented treatment during service in providing a negative etiology opinion. See Dalton, 21 Vet. App. at 23. In addition, the examiner states that there is no clinical documentation of the nature of the Veteran’s headaches of record but the December 2010 VA examination indicates that the Veteran’s headaches were bitemporal, sharp, non-throbbing, usually relived with pressure in the temporal area and taking BC powder, and lasted for approximately one hour. The Veteran further reported that he experienced headaches at least once in two weeks and that they were about 8/10 in intensity and included no associated neurological symptoms, nausea, vomiting, or light or sound sensitivity. Finally, the Appellant provided a lay statement in September 2020, wherein she raises a new theory of entitlement that the Veteran’s headaches were secondary to his service-connected cervical spondylosis and osteoarthritis. The Appellant highlighted the fact that the Veteran was diagnosed with cervicogenic headaches in August 2005 by a private chiropractor. The Appellant also submitted several internet medical articles related to headaches as residuals of shrapnel injuries and the nature and causes of different types of headaches. Accordingly, an addendum opinion by a VA examiner is needed to clarify, with rationale, whether the Veteran's current headaches were secondary to, or aggravated by, his service-connected cervical spondylosis and osteoarthritis Based on the foregoing, the opinion is deemed both incomplete and inadequate, and the issue must be remanded for an additional medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: Obtain an opinion from an appropriate medical professional who has not previously participated in this decision concerning the nature and etiology of the Veteran's chronic headaches including whether they had their onset during service or are otherwise related to service, to include as secondary to service-connected PTSD, shrapnel wounds to face and neck to include any resulting dental infections/complications, or cervical spondylosis and osteoarthritis. The entire claims file must be made available to and reviewed by the examiner in conjunction with the medical opinion. The examiner should specifically list all of the evidence that they considered in rendering their opinion, to specifically include the noted documents below. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's chronic headaches had their onset during service or are proximately due to or the result of his service-connected disabilities, including his PTSD, shrapnel wounds to face and neck to include any resulting dental infections/complications, or cervical spondylosis and osteoarthritis? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's chronic headaches were aggravated by his service-connected PTSD, shrapnel wounds to face and neck to include any resulting dental infections/complications, or cervical spondylosis and osteoarthritis. (Aggravation is defined as any increase in severity of the nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability.) In other words, did the Veteran’s chronic headaches, as likely as not, increase in severity as a result of the service-connected PTSD, shrapnel wounds to face and neck to include any resulting dental infections/complications, or cervical spondylosis and osteoarthritis? If aggravation is found, please indicate, if possible, the baseline severity of the headaches prior to the aggravation. The examiner is advised that the Veteran was competent to report his observable symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Additionally, the examiner must review and discuss the internet medical articles submitted by the Appellant in September 2020 correspondence, the December 2010 VA examination wherein the Veteran reported that his headaches reduced in severity after dental procedures in 2004 to remove shrapnel fragments from his gums, and the August 2005 chiropractor note indicating a diagnosis of cervicogenic headaches. (Continued on the next page)   The absence of evidence of treatment for headaches in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.