Citation Nr: 21039871 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 07-22 894 DATE: July 1, 2021 REMANDED Entitlement to service connection for a headache disorder, to include migraines is remanded. REASONS FOR REMAND The Veteran had active service from June 1976 to August 1976 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office, in Waco, Texas. The case was remanded by the Board in March 2011. In September 2012, the Board denied the issue on appeal. In October 2012, the Veteran appealed the September 2012 Board denial of service connection for headaches to the United States Court of Appeals for Veterans Claims (Court). In a December 2013 Order, pursuant to a November 2013 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision to the extent that it denied service connection for headaches. The Board again remanded the current issue in May 2014 and July 2015. In an April 2016 decision, the Board again denied service connection for the Veteran's headache disorder. The Veteran appealed the Board's April 2016 decision to the Court, which in a September 2017 memorandum decision vacated the Board's April 2016 decision and remanded the case to the Board. The Board thereafter remanded this appeal in July 2018. The Veteran seeks service connection for a headache disorder, which he reports became manifest in service. In addition, in December 2018 written argument, his attorney maintained that because the CAVC had determined that prior VA medical opinions were inadequate, it was error to rely on them and that the VA examiner who performed the October 2018 examination similarly failed to appropriately consider his lay report regarding the onset of the disability in service. In a February 2019 decision, the Board again denied service connection for the Veteran's headache disorder. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2020 memorandum decision vacated the Board's February 2019 decision and remanded the case to the Board. 1. Entitlement to service connection for a headache disorder, to include migraines is remanded. The Veteran contends that his current headache disorder began during service. Specifically, in his September 2008 claim, he reports the onset of headaches after a back injury due to an obstacle course during service. In this regard, he consistently reports that he experienced headaches since service, as well as prior to, and after a post-service June 1993 motor vehicle accident. Service treatment records, including the April 1976 enlistment examination are negative for complaints, treatment, or a diagnosis of a headache disorder. A July 1976 medical board evaluation demonstrates that the Veteran was discharged after 45 days of service due to a low back disorder existing prior to service. Post-service private treatment records include a February 20, 1993, record that notes the Veteran's report of headaches. A June 10, 1993, record shows the Veteran was involved in a motor vehicle accident. An October 1993 record demonstrates complaints of headaches. A January 5, 1994, record notes occasional headaches. Subsequent January 1994 treatment records show the Veteran denied headaches. A June 2000 record indicates the Veteran's report of headaches. Report of VA examination dated in May 2011 reflects the Veteran's report of a 30-year history of off-and-on headaches treated with Advil and Tylenol. The examiner opined that the chronic headaches were less likely than not related to service. No rationale was provided. Report of VA examination dated in June 2014 reflects that the Veteran reported a 38-year history of headaches, including daily headaches that incapacitated him three to four times a week. The examiner recorded a history of headaches beginning in service after the Veteran fell while doing an obstacle course, striking his head and hurting his back. The examiner reviewed the record and determined that the Veteran did not have a headache condition, although symptoms of a headache were noted on examination. The examiner opined that any current headache condition was not related to service because the Veteran did not report the condition during or after service to treatment providers. Report of VA opinion dated in October 2015 reflects the examiner's notation that the Veteran adamantly stated that his headaches began during boot camp. The examiner determined that the current headache disorder was directly related to a post-service June 1993 motor vehicle accident. In providing this opinion, the examiner noted that service treatment records were silent for headaches. Report of VA opinion dated in December 2015 reflects the examiner's conclusion that the current headache disorder was not related to service because headaches were marked "no," on the post-service medical report, indicating that they did not exist in service. Report of VA opinion dated in October 2018 reflects the examiner's conclusion that the current headache disorder was not related to service. The examiner supported his conclusion that the Veteran's headaches are not related to service with the following statement: It is less likely than not that the Veteran's claimed headache disability originated during his service or is otherwise related to his active duty service. The service treatment records are full of comments on his headaches. One comment indicated he had migraine headaches since birth. Another one indicated that his headaches went away after his low back surgery. Another one indicated that his headaches recurred after his motor vehicle accident. Another note indicated he had increased headaches after he hit his head on an obstacle course. At one point it was noted the veteran felt that his headaches were due to the car accident. There are 2 documents available during his active duty, both of which indicated no headache complaints. When considering all the information available including the Veteran's report of medical history, it is less likely than not that his headaches were incurred in or were etiologically related to his service. In forming this opinion weight is given to the veteran's credible history, which has included: 1. Headaches since childhood 2. No headaches complaints on April 28 and July 22, 1976 while in the military. 3. The Veteran's history that he hit his head on an obstacle course and had headaches. 4. The Veteran's history that the headaches came on after a non-military related motor vehicle accident. Given the varying histories regarding his headaches, the opinion rendered today is based on the totality of his history, not favoring one element of his history over another element of his history, but rather looking at all of the contradictory histories and giving weight to the most consistent elements of his history. The examiner did not adequately explain why the characteristics of the Veteran's current headache disorder show that it could not have begun during his active service. There is no medical analysis connecting the examiner's conclusion to the data that he cites. The opinion is inadequate. Nieves-Rodriguez, 22 Vet. App. at 301 (holding that a medical opinion must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The examiner also did not comply with the Board's remand instructions. See Stegall, 11 Vet. App. at 271. In its remand decision, the Board found that the appellant "consistently reports that he experienced headaches since service, as well as prior to, and after a post-service June 1993 motor vehicle accident." The Board specifically ordered the examiner to "accept" that the appellant "experienced headaches prior to the June 10, 1993, post-service motor vehicle accident, as document by the February 20, 1993, private treatment record." There is no indication that the examiner followed that command or otherwise explored the implications of the Board's instruction. Indeed, the examiner wrote that "I do not have the letter referenced from February 20, 1993." More importantly, the Board ordered the examiner to "assume that the [appellant] is credible." That means, for the purposes of the examination, the appellant did hit his head during service and experienced headaches at that time, and the question is whether that in-service injury is linked to his present headache disorder. The examiner made no effort to answer that question. To date, the VA opinions of record are inadequate to adjudicate the claim. In this regard, the May 2011 opinion lacks analysis, as well as any rationale. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Likewise, the June 2014, October 2015, and December 2015 opinions are also inadequate, as the examiners did not consider the Veteran's statements indicating that he experienced headaches since service. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of a headache, as are the post-service treatment records prior to February 1993; however, VA cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). Additionally, as discussed above, the October 2018 VA examination is also inadequate. Therefore, the Board must remand this issue for a new medical opinion concerning this matter. As there has not been substantial compliance with the remand directives, the appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). Further, development to obtain any outstanding medical records pertinent to the Veteran's claim should be completed. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. Following the review of the record, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's currently diagnosed headache disability originated during service or is otherwise etiologically related to the Veteran's active service. In providing this opinion, the examiner must accept that the Veteran experienced headaches prior to the June 10, 1993, post-service motor vehicle accident, as documented by the February 20, 1993, private treatment record. For purposes of the opinion, the physician should assume that the Veteran's statements are credible. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion(s). 3. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.