Citation Nr: 1312983 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for migraines, to include secondary to service-connected residuals of a traumatic brain injury, status post concussion. REPRESENTATION Veteran represented by: Daniel Smith, Attorney at Law ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from October 1994 to June 1999, with a verified period of active duty for training (ACDUTRA) in April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Atlanta, Georgia RO certified the case to the Board. In April 2008 and April 2011, the Board remanded the Veteran's claim for additional development of the record. The case is once again before the Board. FINDING OF FACT The Veteran's migraine headache disability is as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor her migraine headache disability is due to a disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) held that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. Duties to notify and assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159. The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA notify the claimant and her representative of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of her claim - in light of the fact that service connection is being granted. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the service connection benefit sought on appeal. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). To establish status as a "Veteran" based upon a period of active duty for training (ACDUTRA), a claimant must establish that she was disabled from a disease or injury incurred or aggravated in line of duty during that period of ACDUTRA. See 38 C.F.R. § 3.1(a), (d) (2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for purposes of other periods of service does not obviate the need to establish that the claimant is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.6(a) (2012). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 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. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). Under 38 C.F.R. § 3.310(b) of VA regulations, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). III. Factual Background In her September 1994 medical history report the Veteran denied that she had, or ever had, frequent/severe headaches. A clinical neurologic examination conducted at this time was normal. Similarly, during a May 1998 physical examination, the Veteran denied a history of migraine headaches. The Veteran's service treatment records document that she complained of "light headaches" in July 1998. No pertinent diagnosis was offered. In September 1998, the Veteran sought treatment for a migraine headache that had existed for the prior 24 hours. She described constant pain that started at the front of her head and moved to the base of the skull and photophobia. She also reported a history of previous migraines. Following a physical examination she was diagnosed as suffering from a migraine. In November 1998, the Veteran was a passenger in a head-on motor vehicle accident. Afterwards, she complained of headaches and cervical pain. During post accident treatment, she provided a medical history which included a history of migraines and a history of concussions as a child. In her May 1999 separation medical history report the Veteran reported that she had a history of a prior head injury. The Veteran did not answer the question whether she suffered from frequent or severe headaches. The appellant was clinically A neurologically normal at separation. A headache disability was not diagnosed. In April 2002, during a period of ACDUTRA, the Veteran fell from a moving vehicle and fractured her skull. She did not lose consciousness, but was disoriented. She was assessed as having sustained a nondisplaced linear fracture to her skull and required staples to her scalp. She was diagnosed with a mild concussion secondary to blunt head trauma, linear skull fracture, scalp laceration, and shoulder abrasion. In May 2002, the Veteran complained of left facial pain and numbness. She reported a headache that responded to Tylenol and a difference in pupil size. In May 2003, the Veteran was afforded a general VA examination. While the examiner did not review the Veteran's claims folder, the record indicates that he had considered the medical history as reported by the Veteran which is consistent with that contained in her claims file. Following a clinical examination, the Veteran was diagnosed with status-post concussion in May 2002, with persistent lightheadedness, currently with an "asymmetric neurological examination." During a June 2003 VA neurology examination, the Veteran described the 2002 fall from a moving vehicle and reported that she subsequently developed recurrent episodes of dizziness, nausea, impaired concentration and memory problems. She also reported arm numbness since her 1998 motor vehicle accident. The examiner noted that while the Veteran complained of pain at the site of her scalp laceration, she did not describe actual headaches. Following a physical examination, the Veteran was diagnosed with post concussion syndrome with persistent dizziness and mild cognitive dysfunction. The Veteran was granted entitlement to service connection for status post concussion, in a July 2003 rating decision. In September 2003, the Veteran filed a claim of entitlement to service connection for migraines secondary to her concussion residuals. An October 2004 VA treatment record documents that the Veteran sought treatment for headaches, to include twice monthly migraines, which she complained had occurred daily since her 2002 injury. In March 2005, she was seen for follow-up after complaints of daily headaches, which had increased in intensity. She was diagnosed with post-traumatic headaches at this visit. During a July 2009 VA traumatic brain injury examination, the Veteran complained of headaches that began after her 2002 injury. She reported that her headaches were accompanied by nausea and sensitivity to light and sound. Following a physical examination, she was diagnosed with a mild traumatic brain injury with residual migraine headaches. In an August 2009 VA mental health examination, the Veteran reported having continued headaches which were relieved by medication. She was diagnosed with "post-concussion syndrome (headaches, memory problems)." In January 2010, the Veteran was afforded a VA migraine examination. During the examination, the Veteran reported that she experienced headaches prior to her concussion in 2002, but that they had increased in severity following her head injury. The Veteran also reported that seeing a neurologist every six months for treatment of her migraine headaches and that she sought emergency treatment in August 2009 for her symptoms. After reviewing the Veteran's claims file, the VA examiner stated that the Veteran's headache disability began in 1998 but was not aggravated by her 2002 concussion because there was "no documentation of worsening of her headaches for approximately 2-1/2 years after her injury." The Veteran was afforded a VA fee-basis examination in June 2012. While the examiner did not review the Veteran's claims folder, the examiner considered the medical history as reported by the Veteran which is consistent with that contained in her claims folder. After conducting a physical examination, the VA examiner diagnosed the Veteran with a chronic headache disability. It was noted that while the Veteran had a history of migraine headaches that occurred once per month, she now had chronic daily headaches. The examiner stated that the Veteran's chronic daily headaches were consistent with a post-concussive phenomenon and closed a head injury. The record also contains a June 2012 Disability Benefits Questionnaire was completed by a separate VA examiner. Based on the November 1998 service treatment record which stated that the Veteran had a past medical history of headaches and a concussion as a child, the VA examiner opined that the Veteran suffered from headaches/migraines prior to her active duty service, that her headaches were not the result of her active duty service, that her headaches were independent of her service-connected status-post concussion, and that her headaches were not solely residuals from her 2002 injury. The examiner also found that a pre-existing headache disorder was aggravated by her 2002 concussion and skull fracture because this injury had increased the frequency of her headaches to where she now experienced daily headaches. When asked to reconcile the August 2009 VA mental health examiner's diagnosis of traumatic brain injury with residual migraine headaches, and the January 2010 VA examiner's opinion that the Veteran's migraine headaches were independent of her service-connected concussion, the June 2002 VA examiner stated that he could not reach a determination without resorting to speculation. IV. Analysis The Veteran is seeking entitlement to service connection for a headache disability on a direct basis and secondary to residuals of a traumatic brain injury, status post concussion. For the reasons stated below, the Board finds that service connection may be granted on a direct service connection theory of entitlement. As noted, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence or aggravation of disease or injury; and (3) a competent and credible nexus linking the current disability to the in-service disease or injury. Shedden. As an initial matter, while the June 2012 VA examiner stated that the Veteran had a headache disorder that pre-existed her entrance to service, she was found to have been in sound physical condition upon enlistment and the presumption of soundness is not rebutted by clear and unmistakable evidence to the contrary. Specifically, the record clearly indicates that the Veteran was not diagnosed with a headache disability during her September 1994 entrance examination and she denied having a history of headaches at that time. While the Veteran's service treatment records note that she described a past medical history of headaches following a November 1998 motor vehicle accident, these records also indicate that she had sought treatment for headaches in July and September 1998. There is no evidence that the Veteran had sought treatment for a chronic headache disorder prior to her active duty service. Moreover, the notation in the November 1998 service treatment records that the Veteran had a concussion as a child does not demonstrate that she had a preexisting headache disability prior to her enlistment to active duty service. There are no in-service or post-service treatment records indicating that the Veteran was treated for, or noted to have, a headache disorder prior to her being accepted for active military service. The presumption of soundness has therefore not been rebutted. Based on the service treatment records which document the Veteran's complaints of headaches, the Board finds that an in-service disease has been demonstrated. The second Shedden element has therefore been met. With respect to the first Shedden element (evidence of a current disability), it is undisputed that the Veteran has a currently migraine headache disorder. With respect to the third Shedden element, as discussed in detail above, the record contains multiple VA examination reports which discuss the etiology of the Veteran's headache disorder. With respect to the July 2009, August 2009 and June 2012 VA examination reports, upon review, these examiners stated that the Veteran's headaches were a residual or a symptom of her April 2002 concussion. However, the examiners did not provide any rational for these findings and the opinions are therefore of low probative value. See Hernandez-Toyens v. West, 11 Vet.App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). In the January 2010 VA examination report, the examiner stated that the Veteran's headache disorder preexisted her April 2002 concussion because the record indicates that the Veteran complained of migraines while on active duty. While the VA examiner did not offer an opinion as to whether the Veteran's migraines were related to her active duty service, the report clearly indicates that the examiner believed that the Veteran's disability began while she was on active duty. With respect to the medical opinion contained in the June 2012 Disability Benefits Questionaire as discussed above, the Board has found that the Veteran's headache disability did not exist prior to her active duty service. As such, the June 2012 VA examiner's opinion is based on an inaccurate factual premise and entitled to no weight of probative value. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely." In short, the only probative opinions of record indicate that the Veteran's headache disability began while she was on active duty or are a result of an injury she sustained while on ACDUTRA. Accordingly, the Board need not determine the exact etiology of the Veteran's disability as service connection is warranted under either situation. The third Shedden element has therefore been met. In summary, the Veteran has met all requirements needed establish service connection for migraine headaches. Specifically, the claims folder contains competent and credible evidence of a nexus between the Veteran's diagnosed migraine disorder and her active duty service. The claim is allowed. ORDER Entitlement to service connection for migraine headaches is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs