Citation Nr: 1749096	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  07-10 557	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


Entitlement to service connection for headaches, to include as secondary to service connected anxiety disorder.  


Appellant represented by:	John S. Berry, Jr., Attorney At Law




S. Solomon, Associate Counsel 


The Veteran served on active duty in the United States Army from January 1967 to December 1968.  

The Veteran had a Travel Board hearing in March 2008, and a transcript of the hearing is of record.  The Veterans Law Judge who presided over this hearing is no longer with the Board.  As a consequence of such, the Board offered the Veteran another hearing, and he denied the request in September 2011.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In June 2009, the Board, inter alia, denied entitlement to service connection for migraine headaches.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court or CAVC) and the claim was remanded back to the Board pursuant to a July 2011 Joint Motion for Partial Remand (JMPR) on the basis that the Board did not consider the Veteran's lay testimony and whether the existing evidence was sufficient to meet the requirements to trigger the VA's duty to provide a medical examination.  

Consequently, the Board issued a remand in February 2012 and the Veteran was afforded an April 2012 VA examination.  The claim was readjudicated by the RO and was again denied by the Board in August 2015.  The Veteran appealed this decision, and as a result, CAVC issued a Memorandum Decision in September 2016 vacating the denial on the basis that the Board failed to consider the Veteran's claim under the secondary theory of entitlement.  No claim for direct service connection was pursued as reaffirmed by the Court in its decision.  

In May 2015, the Board once again remanded the claim to obtain a medical opinion with respect to secondary service connection for the Veteran's headaches.  Unfortunately, another remand is necessary before the Board can adjudicate this claim.  The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


The Board regrets further delay, but additional development is necessary to adjudicate the claim. 

Pursuant to the Board's remand directives, a supplemental nexus opinion was obtained in June 2017, where the examiner concluded that the Veteran's headaches are less likely than not caused or aggravated by his service-connected generalized anxiety disorder.  The Board finds this opinion inadequate.  First, the examiner's opinion did not discuss the impact, if any, the Veteran's medication for generalized anxiety disorder may have on his headaches despite his reporting that he gets headaches when he does not take his medications.  

Further, the examiner's opinion appears to rely on the lack of documented chronic headaches that is etiologically related to the Veteran's generalized anxiety disorder in the Veteran's psychiatric medical records.  However, the Board is relying on the examiner's own expertise to make such determination.  Therefore, the lack of a documented link between the Veteran's headaches and anxiety disorder in his treatment records is insufficient rational to support the examiner's conclusion. 

An adequate medical opinion, for the purposes of evaluating a Veteran's disability, provides rational analysis that takes into consideration the Veteran's lay statement and medical history to support its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Therefore, a remand is necessary to obtain another examination and medical opinion. 

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding VA treatment records from March 2017.

2. After completing directive #1, schedule the Veteran for a VA examination with a qualified professional to determine the nature and etiology of the Veteran's headaches.  The claims file must be made available to, and reviewed in its entirety by the examiner.

Based on the examination results and review of the record, the examiner should provide an opinion and answer the following questions:

a) Is the Veteran's chronic headaches at least as likely as not (50 percent or greater probability) caused by her service-connected general anxiety disorder.

b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic headaches  are aggravated by her service-connected general anxiety disorder.

c) Is it at least as likely as not (50 percent or greater probability) that the medicine that the Veteran takes for his service-connected general anxiety disorder causing OR aggravating the Veteran's chronic headaches.

The term "aggravated" in the above context means a worsening of the Veteran's symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. 

The examiner must consider the Veteran's statement that he gets headaches when he does not take his medication for generalized anxiety disorder. 

A rationale for all requested opinions should be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide a complete explanation stating why this is so.  In so doing, the examiner should 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.

If the examiner relies upon treatise or medical literature for support, citations to such should also be provided.

3.  The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

4.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals


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