Citation Nr: 21030757 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-31 598A DATE: May 19, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS AND BASES REMAND The Veteran served on active duty from March 1979 until January 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in June 2017; a transcript is associated with the claims file. In November 2017, the Board remanded the claims to obtain VA examinations. In July 2020, the Board found that the VA examinations were inadequate as they failed to comply with the November 2017 instructions. 1. Entitlement to service connection for migraine headaches is remanded. Unfortunately, a remand is required for this claim as the Board's July 2020 instructions were not followed. Stegall v. West, 11 Vet. App. 268 (1998). A September 2020 addendum opinion was obtained for the Veteran's migraine headaches. The examiner opined that the Veteran's headache disability was less likely than not directly related to service as the medical record did not reveal continuous ongoing medical treatment of a headache condition during service to present day; the examiner concluded that it onset after discharge. The examiner additionally opined that the Veteran's headache disability was less likely than not caused or aggravated by his neck disability as, "although neck condition may cause migraine headache, medical record review did not reveal evidence for cervical spine condition to negatively impact and cause migraine headaches." Unfortunately, the September 2020 addendum opinion failed to comply with the Board's July 2020 instructions. Specifically, regarding direct service connection, the VA examiner failed to discuss the August 2011 VA examiner's findings that the Veteran's headaches stemmed from sinusitis given the presence of sinus treatment during service and February 2019 VA medical records showing that the Veteran's migraines could possibly be related to head trauma from playing football or being hit in the head with a baseball bat in the military. Regarding secondary service connection, he failed to expressly consider the March 2019 VA treatment records indicating that the Veteran's headaches are "likely associated with cervical injury." For these reasons, remand is necessary to obtain another addendum opinion. 2. Entitlement to service connection for a low back disability is remanded. Like the above, a remand is required for this claim as the Board's July 2020 instructions were not followed. Stegall v. West, 11 Vet. App. 268 (1998). A September 2020 addendum opinion was obtained for the Veteran's low back disability. Therein, the VA examiner opined, in part, that the Veteran's low back disability was less likely than not related to service as medical record review did not reveal continuous ongoing medical treatment of a low back condition from discharge to the present; the examiner concluded that it was likely related to joint aging and overuse. The Board notes that the mere absence of medical records does not necessarily contradict the Veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, in Miller v. Wilkie, 32 Vet. App. 249 (2020), the Court held that an examiner must address the Veteran's lay statements to provide an adequate medical opinion. Here, the September 2020 addendum examiner failed to incorporate the Veteran's lay contentions regarding continuity of symptomatology in its nexus opinion. As such, it fails Miller, and remand is required to obtain an addendum VA medical opinion to consider them. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. Unfortunately, a remand is required for this claim as the Board's July 2020 instructions were not followed. Stegall v. West, 11 Vet. App. 268 (1998). A September 2020 addendum opinion was obtained for the Veteran's psychiatric disability. The examiner opined that the Veteran's psychiatric disability was less likely than not caused or aggravated by service-connected disability. By way of rationale, however, the examiner stated only that "schizoaffective disorder is not caused by the above reported conditions and therefore, it is les likely than not" that the Veteran's service-connected disabilities "resulted in his mental health conditions." The examiner also stated that the Veteran's psychiatric disability was not aggravated by service-connected disabilities because "there are no notes supporting this connection." Unfortunately, the September 2020 addendum opinion failed to comply with the Board's July 2020 instructions. Specifically, the examiner did not offer any rationale for this conclusion other than the circular statement that since the Veteran's psychiatric disorder "is not caused by" any service-connected disability, it is less likely than not that his service-connected disabilities caused his psychiatric disorder. The Board finds this rationale to be inadequate. Further, regarding the question of aggravation, the Board finds that the examiner's statement that "there are no notes supporting this connection" between the Veteran's psychiatric disorder and his service-connected disabilities to be inadequate as it is unsupported by any explanation or rationale. For these reasons, remand is necessary to obtain another addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's migraine headaches. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled. The claims folder must be reviewed in conjunction with the examination and opinion. The VA examiner must provide separate, well-reasoned responses to each of the following: (a) Whether it is at least as likely as not that the Veteran's migraine headaches had their onset in service, within one year of service separation, or are otherwise related to service. The examiner is asked to specifically comment and discuss the August 2011 VA examiner's finding that the Veteran's headaches stemmed from sinusitis given the presence of sinus treatment during service and February 2019 VA medical record showing that the Veteran's migraines could possibly be related to head trauma from playing football or being hit in the head with a baseball bat in the military. (b) Whether it is at least as likely as not that the Veteran's migraine headaches were caused by the Veteran's service-connected cervical spine disability. (c) Whether it is at least as likely as not that the Veteran's migraine headaches were aggravated by the Veteran's service-connected cervical spine disability. The examiner is asked to specifically comment and discuss the March 2019 VA treatment records indicating that the Veteran's headaches are "likely associated with cervical injury." 2. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's low back disability, to include degenerative arthritis. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled. The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide separate, well-reasoned responses to each of the following: (a) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis, began in service, within one year of service, or is otherwise etiologically related to service. The examiner must specifically comment on the March 2012 VA treatment record and April 2019 VA treatment record showing that the Veteran has consistently reported that his low back problems started when playing football in the military and have persisted to the present. (b) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis, is caused by the Veteran's service-connected disabilities. (c) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis, is aggravated by the Veteran's service-connected disabilities. 3. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's psychiatric disability. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled. The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide separate, well-reasoned responses to each of the following: (a) Whether it is at least as likely as not that any psychiatric disability began in service, within one year of service, or is otherwise etiologically related to service. (b) Whether it is at least as likely as not that any psychiatric disability is caused by the Veteran's service-connected disabilities. (c) Whether it is at least as likely as not that any psychiatric disability is aggravated by the Veteran's service-connected disabilities. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.