Citation Nr: 21025893 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-30 125 DATE: April 29, 2021 REMANDED Entitlement to service connection for headaches, as secondary to service-connected other specified trauma and stressor-related disorder with sleep disturbances (hereinafter “psychiatric disability”) or as due to Gulf War illness or exposures, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to July 1992. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision which, in pertinent part, denied service connection for headaches. In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2019 and November 2020, the Board remanded this claim for additional development. An April 2021 informal hearing presentation requested the qualifications of the December 2019 VA examiner, who also provided addendum opinions in June 2020 and December 2020. This request is moot because remand is required for a new VA examination. Entitlement to service connection for headaches At the November 2018 hearing, the Veteran testified that he experienced a lot of headaches during service because he slept under the flight deck and would be startled every time a plane landed. He testified that he went to medical and all they did was give him a cold pack and sent him on his way. The Veteran testified that he experienced headaches less so now, but more so when he worked in corrections because the closed environment reminded him of the confined areas on the ship. The Veteran also contends that his headaches are secondary to his service-connected psychiatric disability. The Board cannot make a fully-informed decision at this time because the December 2020 addendum opinion is inadequate. The examiner opined that the Veteran’s headaches were less likely than not related to service or manifested within one year after discharge from service. The examiner considered the 1992 exit examination and the Veteran’s self-report of medical history, but did not consider service treatment records mentioning headaches, to include September 1989 and November 1990, as instructed in the Board’s November 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that an examiner cannot rely on the absence of evidence in service treatment records without providing a proper foundation for drawing negative inferences for the absence of evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). The Board also finds that the December 2019 and June 2020 addendum opinions on secondary service connection are inadequate. The examiner opined that the Veteran’s headaches were not caused by or aggravated beyond its natural progression due to service-connected psychiatric disability, and the examiner was unaware of any scientific study confirming such a nexus. The examiner’s opinion, however, was based on an incomplete record because the Veteran’s claims file does not contain psychiatric treatment records from the Vet Center or private providers. Remand is also required to obtain an opinion on whether the Veteran’s headaches are due to toxic Gulf War exposures or, if a diagnosis cannot be rendered concerning the Veteran’s headaches, due to certain disabilities occurring in Persian Gulf veterans. See 38 C.F.R. § 3.317. The Board notes that the Veteran served in the Southwest Asia theater of operations based on his receipt of the Kuwait Liberation Medal. An April 2021 informal hearing presentation asserted for the first time that the Veteran’s headaches are due to toxic Gulf War exposures. While written pleadings involving a claim of service connection for a skin disability identified Gulf War exposures to include the sun, fumes, and water smelling of salt water and jet fuel, the Veteran should be provided with a VA Form 21-4138 to identify the details of any toxic Gulf War exposures asserted to be the cause of his headaches. On remand, the AOJ should update the Veteran’s VA treatment records and obtain treatment records from Ewing (New Jersey) Vet Center. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (stating that Vet Center records are deemed constructively of record). The Veteran should also be provided with VA Form 21-4142a to identify any relevant private treatment records, to include from private physician Dr. L and the Center for Family Guidance. The Board notes that the Veteran did not respond to the November 2020 notice requesting him to complete VA Form 21-4142a for Dr. L. and any other provider for headaches. Because this matter is being remanded, the Board will give the Veteran another opportunity to assist the AOJ in obtaining relevant private treatment records for headaches or service-connected psychiatric disability. The Board informs the Veteran that he has a duty to assist the AOJ in developing evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Following remand, if the Veteran does not complete VA Form 21-4142a for private treatment records, he is informed that his claims file may lack information favorable to his claim. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. Undertake appropriate efforts to obtain any outstanding records of treatment from the Ewing (New Jersey) Vet Center. If the Vet Center requires an authorization form to obtain records, notify the Veteran of this requirement and provide him an authorization form for him to return to authorize release of these records. 3. Ask the Veteran to complete a VA Form 21-4142a for Dr. L., the Center for Family Guidance, and any other private provider for his headaches or service-connected psychiatric disability. Use the January 2021 VA Form 21-4142, or ask the Veteran to complete a new VA Form 21-4142 if it is not current at the time of requesting records. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 4. Ask the Veteran to complete a VA Form 21-4138 to identify the details of any toxic Gulf War exposures asserted to be the cause of his headaches. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s headaches. The examiner should identify all applicable diagnoses. All necessary testing to rule a diagnosis in or out should be performed. The examiner should provide a rationale to support all opinions. The examiner is advised that a negative opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining whether the disability is related to service. For each diagnosed headache disability, the examiner should opine whether the disability at least as likely as not began during or is related to service, to include as due to toxic Gulf War exposures. The examiner should consider the April 2021 informal hearing presentation, the Veteran’s November 2018 hearing testimony, and the Veteran’s service treatment records, to include the September 1989 and November 1990 records. The examiner should opine whether each diagnosed headache disability at least as likely as not manifested within one year after discharge from service. The examiner should consider the statements regarding symptomatology since service, to include the Veteran’s November 2018 hearing testimony and the Veteran’s wife’s November 2015 statement. The examiner should opine whether each diagnosed headache disability is at least as likely as not proximately due to the Veteran’s service-connected psychiatric disability. The examiner should opine whether each diagnosed headache disability is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran’s service-connected psychiatric disability. If a diagnosis cannot be rendered concerning the Veteran’s headaches, the examiner is asked to state whether the Veteran’s headaches are symptoms of a diagnosable disorder, a manifestation of undiagnosed illness, a chronic multi-symptom illness with partially understood etiology and pathophysiology, or a medically unexplained chronic multi-symptom illness. If either the etiology or pathophysiology is inconclusive, the examiner should state so. These opinions must be based on the individual Veteran’s circumstances rather than the illnesses as they are understood in the general public. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.