Citation Nr: 22019151 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-33 519 DATE: March 31, 2022 REMANDED Entitlement to service connection for a chronic headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to December 1971. The Veteran testified at a Board hearing at the local Regional Office before the undersigned Veterans Law Judge in November 2021. A transcript of the hearing has been associated with the record. Entitlement to service connection for a chronic headache disability is remanded. The Veteran contends that his current headache disability began during active service and has continued to the present. He has asserted that he injured his head at the same time that he injured his service-connected right knee when the door slammed on him in the missile pit. However, service treatment records actually show that he injured his right knee when it got caught between the curb and his car. Service treatment records are silent with respect to any such injury to the right knee while coming out of the missile pit as well as any associated head injury. Nevertheless, service treatment records document numerous instances of treatment as well as a couple of hospitalizations for evaluation of headaches. Service treatment records also show a line of duty determination for the Veteran's constant headaches. Initially, the Board observes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In this case, the Veteran's February 1968 enlistment exam shows that the head and neurological system were clinically evaluated as normal. In sum, there were no findings of a chronic a headache disability. Thus, the Veteran is presumed to have been in sound condition with respect to this disability. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004. The term "clear and unmistakable evidence," as used in 38 U.S.C. § 1111, has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki (2009), 22 Vet. App. 390, 396 (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). In this case, the Veteran's medical history at the time of enlistment showed that he did suffer a concussion at age 10, but that there were no sequelae. Another service treatment record also indicated that he had hit his head at that age. Moreover, the August 2015 VA examiner indicated that the Veteran's headaches, which clearly and unmistakably existed prior to service, were less likely than not aggravated beyond their natural progression in service. However, the examiner offered no rationale for finding that the Veteran's headaches existed prior to service. Further, while noting the concussion at age 10, the service examiner at the time of enlistment clearly found that there were no residual symptoms associated with this concussion. Again, there was no indication in the service treatment records of a pre-existing headache condition. Rather, the service treatment records state that the Veteran's headaches were incurred in the line of duty. Further, at the Board hearing, the Veteran testified that he did not have a pre-existing headache disability. As such, the evidence does not show that the Veteran's headaches clearly and unmistakably preexisted his active service. Thus, the presumption of soundness has not been rebutted. Accordingly, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Veteran was afforded another VA examination in May 2018. The examiner found that due to a lack of medical records and discrepancies in the Veteran's history, he was unable to attribute the Veteran's headaches to events that occurred in military service without resorting to speculation. He rationalized that there were no reports of head trauma in the service treatment records as reported by the Veteran. He also indicated that the Veteran's description of headaches is dissimilar to those reported in the service treatment records as he was thought to have functional headaches in service. He also stated that there were no post service medical records for 37 years showing headaches. He also noted that the prior rating decision indicated that the headaches existed prior to service. Unfortunately, the Board finds that this examination is inadequate as the examiner did not use the correct standard of "as likely as not". Likewise, in the rationale, the examiner failed to discuss the numerous service treatment records documenting headaches but appeared to rely solely on the lack of a head injury. Further, he indicated that it was 37 years post service before the first evidence of headaches. However, post service treatment records dated in January 1996 show a history of headaches and that the Veteran took Ibuprofen 800 milligram for his headaches. He also did not address the Veteran's statements of pertinent symptomatology. The examiner also did not consider the Veteran's assertion that he was unable to afford care at times. Thus, it does not appear that the examiner considered all the relevant evidence of record and provided sufficient rationale based on such evidence. As such, the Board finds that another VA examination with opinion is necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran also testified that after service, he sought treatment at the VA Outpatient Clinic in Fort Snelling, St. Paul, Minnesota. While it appears that the claims file includes a VA examination from this facility, it does not appear to contain clinical records. As such, any VA clinical records from the VA Outpatient Clinic at Fort Snelling should be obtained. Likewise, any additional VA clinical records dated from January 2017 to the present from Bay Pines VA Medical Center should be obtained. Further, given the need to remand, appropriate steps should be taken to obtain any relevant private treatment records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private providers that have treated his headaches since his discharge from active service. Make two requests for the authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA clinical records from the VA Outpatient Clinic in Fort Snelling. Any negative responses must be clearly documented in the claims file. Obtain all additional VA clinical records dated from January 2017 to the present from Bay Pines VA Medical Center. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic headache disability. The claims file must be reviewed. The examiner must opine whether it is at least as likely as not that any diagnosed disorder (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to service, to include the numerous documented incidents of headaches. A detailed rationale must be provided. The examiner must address the service treatment records, the post-service treatment records and the lay evidence of pertinent symptomatology as well as the Veteran's inability to afford care. The examiner is advised that the Veteran did not have a pre-existing headache disability upon entrance to service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.