Citation Nr: 22014872 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-15 688A DATE: March 15, 2022 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a psychiatric disorder, to include depression and anxiety is remanded. REASONS FOR REMAND The Veteran had active service from October1987 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of the August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2018, the Board remanded this matter for further development. In November 2021, the Board remanded this matter for further development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11Vet. App.268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App.97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that her migraines are related to active service. Specifically, the Veteran testified that while she was in bootcamp, they were being inspected and were standing at parade rest, and the next thing she knew she was on the ground, and she had fallen and hit the cement. See March Board Hearing Transcript. The Veteran testified that, I had fell and hit, uh, cement and was hanging, uh, there was a bench there and I was basically hanging by my neck and I wasn't responsive. And so basically, you know, obviously, they called 911, they came and got me and, uh, obviously I had a horrible headache. I had, uh, my tooth had, went through my, uh, bottom lip and basically, they took me to the hospital. I stayed in there three days. The Veteran testified that she continued to have headaches and was told that they would subside. She had a CT exam that revealed no damage. She testified that she has always had issues with horrific headaches and when she went to sick call the doctor would tell her to take a Tylenol for it. In April 2019, the Veteran was afforded a VA examination for headaches. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that during service, the condition was acute only, and there is no evidence of chronicity of care, and therefore a nexus has not been established. The Board remanded this matter and directed the examiner to note and address the Veteran's statements that she had horrific headaches since her injury, and when she went to sick call, she was just told to take a Tylenol, so in essence self-medicate. In December 2021, VA secured an addendum opinion. The examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that no headache condition was documented. The examiner indicated it would be unlikely for a significant headache disability to go undocumented. The earliest mention of a headache was 2010 but it was not confirmed. The examiner stated, This is medically implausible with migraine headaches over such a span had the headaches been continuous, by their very nature...Any headache arising due to the claimed events in service, though not documented, would have been acute and self-limited. There is no evidence supporting an ongoing condition despite claims of onset in service with continuity of symptoms since service and the medical evidence belies the claim. The Board acknowledges that the Veteran had headaches during service on a few occasions. The examiner has not addressed the Veteran's contention that she had to self-medicate because when she reported she had headaches she was just told to take Tylenol, so in essence stopped reporting the headaches. The examiner did not address the Veteran's contention that her headaches progressed and became worse after service, and (over the counter self-medication) no longer worked to relieve her symptoms. The examiner continues to simply rely upon the absence of objective evidence of reoccurring treatment within the Veteran's STR's and the fact that she did not include them on her separation paperwork. The Board notes that the Veteran's STR's demonstrated that she was advised to take "OTC if severe headaches." See November 1992 service treatment record. The examiner must explain why seeking treatment continuously in service is the only way to demonstrate that the Veteran had headaches throughout service, and that the Veteran's current headaches are not related to service. In the alternative, the examiner could explain how the natural progression of headaches is inconsistent with the Veteran's contentions by citing to medical literature in support. In essence, the examiner has not fully explained why the Veteran's contentions are unlikely and failed to offer any evidentiary support for the examiner's conclusions. 2. Entitlement to service connection for a psychiatric disorder, to include depression and anxiety is remanded. The Veteran contends that her psychiatric condition is secondary to the fact that she was sick all of the time. Specifically, that her psychiatric condition is due to her other disabilities. In May 2020, VA secured an addendum opinion regarding the Veteran's claimed mental disabilities. The examiner opined that the Veteran's psychiatric disorder, to include depression and anxiety disability is less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated the Veteran's service-connected condition. The examiner did not provide a rationale. In December 2021, VA secured an addendum opinion for the Veteran's psychiatric claim. The examiner opined, that the claimed psychiatric condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that the Veteran's PTSD is due to traumatic stressors as outlined in the April 2019 examination. However, the VA examiner did not provide an opinion as to whether her PTSD was aggravated by her service-connected disability. A medical opinion as to secondary service connection is inadequate for the Board's decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. Thus, this medical opinion is inadequate, because it only addresses the causation prong of secondary service connection. The Board cannot make a fully informed decision on the issue of the Veteran's PTSD condition because the December 2021 VA examiner did not address whether the Veteran's PTSD was aggravated by her service-connected disabilities. Therefore, the claim must be remanded in order to obtain an opinion regarding aggravation. The Board also acknowledges that while the Veteran had traumatic events outside of service, the examiner did not address whether the Veteran's service-connected disabilities caused the Veteran's other psychiatric disabilities. The examiner must provide a complete rationale, and not simply direct the Board to other medical opinions, that state the same rationale, the Board previously found inadequate. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician (other than the clinician that provided the April 2019 and December 2021 medical opinions) to determine the nature and etiology of the Veteran's headaches. The clinician must be provided with and review the entire claims file, to include a copy of this remand and it should be confirmed that such records were available for review. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches (migraines) arose during or was otherwise caused by the Veteran's military service? The examiner must note and address: a. The Veteran's lay statements that she has had horrific headaches since her injury, and when she went to sick call, she was just told to take a Tylenol, so in essence self-medicate. b. The examiner must explain why seeking treatment continuously in service is the only way to demonstrate that the Veteran had headaches throughout service, and that the Veteran's current headaches are not related to service. The examiner should consider that she was advised to treat her headaches with over the counter medication. c. In the alternative (to b), the examiner could explain how the natural progression of the Veteran's headaches are inconsistent with the Veteran's contentions by citing to medical literature in support. 2. Obtain an addendum opinion from an appropriate clinician (other than the clinician that provided the April 2019, May 2020, and December 2021 medical opinions) to determine the nature and etiology of the Veteran's psychiatric conditions. The clinician must be provided with and review the entire claims file, to include a copy of this remand and it should be confirmed that such records were available for review. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. (a.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's psychiatric disorder, to include depression and anxiety is proximately due to the or the result of any of her service-connected disabilities? (Explain why or why not). (b.) Is it at least as likely as not (at least a 50 percent probability) that the Veteran's psychiatric disorder, to include depression and anxiety increased in severity (aggravated beyond the normal course of the condition) by any of her service-connected disabilities? (Does not need to permanently worsen). (Explain why or why not). 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.