Citation Nr: A24019727 Decision Date: 04/18/24 Archive Date: 04/18/24 DOCKET NO. 201202-122546 DATE: April 18, 2024 REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for a right shoulder disability is remanded. REASONS FOR REMAND The Veteran had service in the United States Army Reserve from April 2008 to August 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board in December 2020, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). See December 2020 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1). Under the Direct Review option, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after the rating decision was promulgated. That said, for the reasons set forth below, the Board is remanding the Veteran's claims to the AOJ for correction of a pre-decisional duty to assist error. The AOJ will consider any additional evidence that has been submitted when the claims are readjudicated. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for migraines is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. Under applicable law, a medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Medical records show that the Veteran has a history of headaches and right shoulder pain. See June 2012 and January 2013 Government Facility Treatment Records. In her September 2020 application for benefits, she claimed that her right shoulder disability was the result of shooting a weapon during military training, and that her migraines started in service. In light of that reported history, and given the low threshold set out in McLendon, the Board finds that the AOJ should have arranged to have had the Veteran examined prior to adjudicating her claims. The failure to do so constitutes a pre-decisional duty to assist error that must be corrected. These matters are REMANDED for the following action: 1. Arrange to have the Veteran examined for the purpose of assessing the etiology of her headaches. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a headache disability, including migraine, that had its onset in, or is otherwise attributable to, her period of service. In doing so, the examiner must consider the Veteran's report to the effect that she noted onset of migraines during service. In arriving at his or her conclusion, the examiner may consider whether the Veteran's post-service statements with respect to onset and continuity of symptoms are consistent or inconsistent with other entries or medical facts as set out in the service treatment records and elsewhere in the record. If there is a medical reason to accept or reject the Veteran's statements with respect to in-service onset and continuity of symptoms since, that should be noted. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. It must be clear from the report that the examiner has considered all procurable and assembled data before stating that an opinion cannot be reached, and that the inability to provide an opinion reflects a limitation of knowledge in the medical community at large and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. 2. Also arrange to have the Veteran examined for the purpose of assessing the etiology of her reported right shoulder disability. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a right shoulder disability that had its onset in, or is otherwise attributable to, her period of service. In doing so, the examiner must consider the Veteran's report to the effect that her condition is the result of firing a weapon while in service. In arriving at his or her conclusion, the examiner may consider whether the Veteran's post-service statements with respect to onset and continuity of symptoms are consistent or inconsistent with other entries or medical facts as set out in the service treatment records and elsewhere in the record. If there is a medical reason to accept or reject the Veteran's statements with respect to in-service onset and continuity of symptoms since, that should be noted. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. It must be clear from the report that the examiner has considered all procurable and assembled data before stating that an opinion cannot be reached, and that the inability to provide an opinion reflects a limitation of knowledge in the medical community at large and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.