Citation Nr: 23046151 Decision Date: 08/19/23 Archive Date: 08/19/23 DOCKET NO. 20-01 866 DATE: August 19, 2023 REMANDED Entitlement to service connection for migraines and/or headaches is remanded. REASONS FOR REMAND The Veteran served in the Navy Reserves from July 2006 to July 2007, and in the Army Reserves from July 2007 to October 2013. During his periods of service, he earned the National Defense Service Medal, Sharpshooter Pistol Shot Ribbon, and Marksmanship Rifleman Ribbon. In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is of record. The appeal was most recently before the Board in October 2022, at which time the Board, in pertinent part, remanded the issue of entitlement to service connection for migraines and/or headaches for further development. Entitlement to service connection for migraines and/or headaches Following the October 2022 Board remand, the Veteran appeared for a VA headaches examination in November 2022. As to the issue of direct service connection, the examiner opined that the Veteran's headaches were less likely than not incurred in or caused by service. In support of the opinion, the examiner stated that the Veteran's available service treatment records did not provide objective evidence of headaches in service. Therefore, the examiner determined that the Veteran's current headache condition is less likely than not directly caused by his military service. As to the issue of secondary service connection, the examiner opined that the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's service-connected obstructive sleep apnea. In support of the opinion, the examiner explained that headaches are a known sequela of untreated obstructive sleep apnea; however, the Veteran's obstructive sleep apnea is being adequately treated with continuous positive airway pressure (CPAP), which is supported by the Veteran's reported compliance with CPAP treatment. Therefore, the examiner determined that the Veteran's current headache condition is less likely than not to have been either caused by or aggravated by his service-connected obstructive sleep apnea. An addendum opinion was obtained in December 2022. The VA examiner opined that the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's service-connected adjustment disorder with depression. In support of the opinion, the examiner explained that Modafinil is not a treatment for adjustment disorder nor depression and was not prescribed to the Veteran with the intention of treating adjustment disorder or depression. More generally, the examiner explained that headaches are not a common sequela of adjustment disorder or depression and not commonly aggravated by adjustment disorder with depression. Unfortunately, the Board finds the November 2022 VA examination is inadequate for adjudication purposes. As to direct service connection, the examiner appears to implicitly reject the Veteran's reports and based the negative finding on the lack of contemporaneous treatment records, without adequate consideration of the Veteran's lay statements regarding in-service symptoms and continuity of headaches since service. As to secondary service connection, the examiner failed to provide adequate rationale for the finding that the Veteran's headaches were not caused by or aggravated by his service-connected obstructive sleep apnea or adjustment disorder or depression. Moreover, though the examiner explained Modafinil is not a treatment for adjustment disorder nor depression and was not prescribed to the Veteran with the intention of treating such, he failed to explain if the medication was prescribed for treatment of a service-connected disability and, if so, whether headaches were attributable to the medication. Thus, the Board finds that a remand is necessary to obtain a new VA opinion as to the etiology of the Veteran's headache disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain a new medical opinion from a qualified examiner regarding the Veteran's bilateral knee and left ankle disabilities claimed headaches. An examination is not required unless deemed necessary by the examiner to render the requested opinions. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. (a.) The examiner must state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's migraines and/or headaches (i) had their onset in service or are otherwise etiologically related to active service; (ii) was caused by service-connected sleep apnea and/or adjustment disorder, to include medications prescribed for treatment; or (iii) was aggravated beyond its natural progression by sleep apnea and/or adjustment disorder, to include medications prescribed for treatment. (b.) In providing the opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected obstructive sleep apnea and/or acquired psychiatric disability did not cause his claimed headache condition, the examiner should still address whether his service-connected obstructive sleep apnea and/or acquired psychiatric disability could have worsened his headache condition. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. (Continued on the next page) ? (c.) The examiner must also discuss the VA treatment records noting that the Veteran was discontinued on medications due to headaches. See CAPRI, received June 22, 2021, pp.199, 209. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.