Citation Nr: 1309087 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 08-36 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for migraine headaches. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to November 1991, to include service in the Persian Gulf from December 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in March 2010 and July 2011 when it was remanded for further development. This case was also previously before the Board in September 2012 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained in November 2012 and a copy of this opinion was sent to the Veteran in December 2012. FINDING OF FACT The competent and credible evidence of record is at least in equipoise as to whether a relationship exists between the Veteran's current migraine headaches and her active duty military service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, migraine headaches were incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Board notes that initially the Veteran claimed that her headaches are due to an undiagnosed illness; however, as they have been diagnosed as migraine headaches, entitlement to service connection for headaches due to an undiagnosed illness is not appropriate. See 38 C.F.R. § 3.317(a)(1)(ii) (2012). Accordingly, the Veteran's claim has been considered as entitlement to service connection for migraine headaches. The Veteran contends that she has had chronic headaches since service. VA progress notes in November 2002 show that the Veteran had migraine headaches for 10 years. In June 2005, the records indicate that the onset of the Veteran's headaches was in 1991. A May 2005 Persian Gulf examination report shows that the Veteran reported that she had severe pounding headaches associated with nausea, and severe photo and phonophobia. The examiner noted that the Veteran dated these headaches back to service and distinguished the current attacks from her sinus headaches. The assessment was migraines. An August 2006 VA general examination noted that the Veteran had chronic headaches. The Veteran underwent an August 2006 VA examination specifically for headaches. She reported having had headaches for about the past 10 years. The diagnosis was migraine headaches. In a May 2010 addendum, the VA examiner confirmed the diagnosis of migraine headaches. On VA examination in April 2011, the Veteran reported that she started having headaches during service in the Persian Gulf, where she was exposed to several explosions and was hit in the head. The diagnosis was migraine headaches. The examiner noted the Veteran's report of headaches beginning during active service; however, the examiner stated that the service treatment records did not document any complaints of headaches. Based on that evidence, the examiner concluded that it is less likely than not that the current headaches had their origin in the military. On VA examination in August 2011, the Veteran reported the same medical history as noted on VA examination in April 2011 and added that her headaches during service were associated with blurred vision, nausea, and pounding. She also stated that she was diagnosed with migraine headaches during service in Korea and within one year after discharge went to the emergency room with vertigo. Physical examination showed that the Veteran's diagnosis was benign positional vertigo. As for the diagnosis of migraine headaches, the examiner was of the opinion that although there was no reason to doubt the Veteran's reports of headaches during service, it was not possible to state that the headaches were directly related to service without proof of treatment. In an addendum in June 2012, the examiner reiterated her April 2011 opinion and noted that the Veteran's dates of service were from July 1984 to November 1991, which were misreported on the April 2011 examination. The Board found that the medical opinions in the claims folder were based on a lack of documentation of headaches during service; however, the Veteran was noted to be competent to report having headache symptoms in service regardless of a lack of contemporaneous medical evidence. As a result, in September 2012, the Board asked for a VA Health Administration (VHA) opinion by a neurologist with regard to the Veteran's migraine headaches claim. In a November 2012 VHA opinion, the VA neurologist initially noted that the Veteran's reports of headaches were first recorded in VA treatment records dated in 2002 in which the Veteran reported that the headaches were of a 10-year duration. This placed the onset of headaches around 1992. The VA neurologist continued to state that the Veteran's self-reported medical history of pounding headaches associated with blurred vision and nausea during service are compatible with a migraine manifestation. The VA neurologist noted that "in the absence of documentation, if this is accepted as a true statement, it is likely as not that the onset of the Veteran's headaches as described in 2002 have an origin during her days of active duty." Moreover, the examiner stated that "exposure to explosions during service in the Persian Gulf can be a contributory factor to developing chronic headaches." The VHA neurologist concluded by emphasizing that the onset of the Veteran's chronic headaches cannot be supported by the available documentation and the opinion relied solely on the Veteran's self-reported history. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. In so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Board notes that the opinions provided by the VA examiners in April and August 2011 are based on a lack of documentation of headaches during the Veteran's period of active service; however, the Veteran is competent to report that she has experienced subjective symptoms of headaches. The Veteran's statements have been consistent and the Board has no reason to doubt the veracity of her statements. The November 2012 VHA neurologist has linked the Veteran's migraine headaches to her active military service based on her reports of headache symptomatology. The Board considers the November 2012 VHA opinion to be probative and persuasive evidence with regard to the etiology of the Veteran's migraine headaches, presenting competent medical conclusions and analysis informed by a review of the claims file. Moreover, the Board finds that there has been adequate development of the evidence and that the evidence is in relative equipoise concerning service connection for migraine headaches. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for the Veteran's migraine headaches. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for migraine headaches is granted, subject to the legal criteria governing the payment of monetary benefits. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs