Citation Nr: 21025734 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-15 625 DATE: April 28, 2021 REMANDED Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran service on active duty in the U.S. Navy from September 1971 to February 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a October 2009 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The matter was previously before the Board in April 2017 and August 2018, at which time it was remanded for development. While the Board regrets the further delay, for the reasons stated below, additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran maintains that he has had daily headaches that relate back to his active duty service. While the Veteran’s service treatment records (STRs) document reports of a skull fracture as a child with subsequent headaches, the Veteran’s August 1971 entrance examination is silent as to any headache condition or treatment. No relevant symptoms were noted in the examination report and the Veteran did not report a history of any headache symptoms in the report of medical history. If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to rebut the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, the Board concluded in a September 2020 remand that the presumption of soundness attaches to the Veteran’s headache disability because the condition was not noted on entry. The Board also concluded that there is not clear and unmistakable evidence that the Veteran’s headache disability was not aggravated by service. In reaching this conclusion, the Board noted that the STRs reflect several headache complaints and the Veteran was witnessed as having received a head trauma during service. The Board further noted that the April 2019 VA examiner concluded that it was difficult to determine whether the Veteran’s headaches were aggravated during service. Because this is not affirmative or undebatable evidence indicating an absence of aggravation, the Board concluded that the presumption of soundness has not been rebutted. Accordingly, this claim is one for service connection and not aggravation. The Board remanded the claim for an addendum opinion to determine whether the Veteran’s current headache disability is directly related to his service. The Board also asked the examiner to provide an opinion as to whether the Veteran’s headache disability is secondary to his service-connected posttraumatic stress disorder (PTSD). In this regard, the Board indicated that the treating records from June 2016 document reports from the Veteran that he had increased headaches and nightmares after attending a PTSD group. The Board also cited to a treatment record from May 2017, which documented concern that the Veteran’s headaches are caused by tension given his increased PTSD symptoms. In response to the Board remand, the April 2019 VA examiner offered negative nexus opinions on both questions, but her rationale is convoluted and confusing. Additionally, her opinion with respect to direct service connection fails to follow the directives of the remand. The examiner was instructed that she must presume that the Veteran’s headache disability did not preexist service. However, she noted that causation for the Veteran’s headache disability was his childhood head injury. Furthermore, her rationale is based on an incorrect factual premise. See Reonal v. Brown, 5 Vet. App. 548 (1993). She noted that there is only scattered documentation of headaches in the record with no mention of headaches for many years and no evidence that the Veteran received preventative care for the disability. However, VA treatment records reveal that the Veteran has reported headaches on a frequent and consistent basis across a variety of treatment settings. He also reported in numerous visits that his current headaches have been occurring since he sustained a head injury during service. For example, he reported in July 2016 that his headaches have been problematic since being involved in an assault during service. He also reported in May 2017 that his headaches have been going on since he was in the service and got into an altercation with some of his colleagues. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms.  38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, VA treatment records also reveal that the Veteran has indeed been prescribed preventative treatment for his headaches in the form of anti-depressant medication. Additionally, the examiner’s opinion with respect to secondary service connection is nonsensical. She noted that the severity of the Veteran’s PTSD remained the same between December 2017 and his most recent PTSD evaluation. From this evidence, she concluded that the Veteran’s headache disability could not have worsened because his PTSD had not worsened. This conclusion does not answer the question before the examiner—whether it is at least as likely as not that the Veteran’s headache disability is caused or aggravated by his service-connected PTSD. While the Board regrets the further delay, for these reasons, it is necessary to have a new VA medical examiner provide an opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate examiner who had not participated in this case regarding the nature and etiology of the Veteran’s headache disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. A VA examination may be provided if deemed appropriate. For purposes of the examination, the examiner must presume that the Veteran was sound upon entrance to service and that his headache disability did not pre-exist service. The VA examiner is asked to respond to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current headache disability was incurred in, caused by, or is otherwise related to the Veteran’s military service, to include any head trauma as a result of the physical assault that he sustained and which is the basis of his award of service connection for PTSD. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headache disability is (a) caused by, or (b) aggravated (i.e. worsened) by his service-connected PTSD. To this end, the examiner should address the evidence of record that indicates that the Veteran’s stress/tension from his PTSD appears to make his headaches either more frequent or increased, particularly the noted May 2017 VA treatment record documenting this concern. In providing the above opinions, the examiner must consider the following: (1) The Veteran’s complete medical history during service, which includes treatment for headaches with upper respiratory symptoms on numerous occasions in November 1971, documentation of a head injury in August 1972, and complaints of chronic headaches in October 1972. (2) The Veteran’s numerous competent lay statements to treating providers from 2014 to 2020 that he has had daily headaches since he sustained a head injury during service. (3) VA treating records, which document increased headaches and nightmares in June 2016 after the Veteran attended a PTSD group, headaches occurring with nightmares in August 2016, and concern noted by a treating physician in May 2017 that the Veteran’s headaches are related to his PTSD, given that they were cooccurring with increased anxiety and worry. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion.   After ensuring that the opinions comply with the terms of this remand, the AOJ should re-adjudicate the claim. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.