Citation Nr: 21042532 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-61 843 DATE: July 13, 2021 REMANDED Entitlement to service connection for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from February 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was initially brought before the Board in November 2018, at which time the Board remanded the issue on appeal for further development. As discussed below, there has not been substantial compliance with the November 2018 remand instructions, so the matter must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for migraines is remanded. The Veteran seeks service connection for migraines. He asserted that listening to Morse code transmissions during his service caused his migraines. The November 2018 Board decision found that the Veteran's in-service noise exposure was presumed because his military occupational specialty (MOS) of Morse code systems operator had a moderate risk of in-service noise exposure. The November 2018 Board remand instructed that the RO must schedule an examination to determine the nature and ideology of any migraines. It further instructed for the VA examiner to state whether it was at least as likely as not that the Veteran's migraines, if diagnosed, were related to his service, and it advised that the absence of contemporaneous records showing complaints or treatments for migraines was alone an insufficient rationale for a medical nexus opinion. The September 2019 VA examiner stated that there were no medical records indicating that the Veteran had headaches during his service. However, the Veteran's October 1972 service treatment records state that the Veteran complained of a week-long headache with associated nausea and malaise, and the Veteran's October 1973 service treatment records indicate that the Veteran reported experiencing headaches. The VA examiner also stated that there were no events in the Veteran's medical record that could be the cause of his migraines, however the Board's November 2018 decision found that in-service noise exposure was presumed because the Veteran's MOS of Morse code systems operator had a moderate risk of in-service noise exposure. Furthermore, the VA examiner did not take into consideration the Veteran's statements regarding the onset of his condition and his history of symptomology as stated in his August 2015 notice of disagreement, where the Veteran related in detail how his headaches started and asserted that his headaches have continued since his active duty service in 1973. When the VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 2 Vet. App. 303 (2007). The VA examiner based her opinion on the inaccurate factual premise that there were no reports by the Veteran of headaches during his years of active service. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The examiner must also consider the Veteran's lay statements regarding the onset and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Because the September 2019 VA examiner based her opinion on a factually inaccurate premise and did not take into consideration the Veteran's statements regarding the complete history of his onset and symptoms, the RO did not substantially comply with the Board's prior remand directive to consider the Veteran's reports of his symptoms and history. See Stegall, 11 Vet. App. at 268 Furthermore, after the September 2019 VA examination the Veteran provided the RO with additional information regarding the continuity of his treatment. He submitted a July 2020 letter indicating that he tried applying for disability for his migraines in September 1975 in the Jackson, Mississippi VA Medical Center and that he attempted to apply for disability and see a doctor for his migraines in March 1977, August 1982, December 1999, May 2005, July 2008, and July 2010 at the Jackson, Mississippi VA Medical Center. On remand, the RO should request these treatment records from the Jackson, Mississippi VA Medical Center. The matter is REMANDED for the following actions: 1. Obtain any outstanding pertinent treatment records for the Veteran's migraines that are not currently of record, including but not limited to records from the Jackson, Mississippi VA Medical Center from September 1975, March 1977, August 1982, December 1999, May 2005, July 2008, and July 2010, to include any attempts to apply for VA Disability Benefits. All attempts should be documented, and the Veteran informed. (Continued on the next page) Schedule the Veteran for a VA examination by an appropriately qualified physician (M.D.) to determine the nature and etiology of his migraines. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's migraines were incurred in or caused by an in-service injury, illness, or event? In providing this opinion, the examiner is requested to address the following: (1) whether the Veteran's migraines are related to the accepted in-service noise exposure from his MOS as a Morse code systems operator; (2) October 1972 service treatment records noting the Veteran's complaints of a week-long headache with associated nausea and malaise; and (3) October 1973 service treatment records indicating that the Veteran reported experiencing headaches. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. Additionally, the examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and service. The examiner should set forth a complete rationale for any conclusion reached, citing to the examiner's own expertise, medical principles, and evidence in the Veteran's claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.