Citation Nr: 1319571 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-50 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The medical evidence clearly and unmistakably shows that the migraine headache disability pre-existed service. 2. The medical evidence does not clearly and unmistakably show that the migraine headache disability was not aggravated by such service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.304 (2012); VAOPGCPREC 3-2003 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a migraine headache disability. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran and his representative acknowledge that he had a migraine headache disorder prior to service, but maintain that service connection is warranted because the disability was aggravated during, or as a consequence of, service. The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Here, because a migraine headache disorder was not noted at service entry, VA cannot presume that, at service entry, the Veteran was not sound with respect to his headaches. VA's General Counsel has held that to rebut the presumption of soundness 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. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25, 178 (2004); see also Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now provides that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. See 70 Fed. Reg. 23,027, 23,029 (2005). In light of the above, and because the competent private and VA examiners have diagnosed the Veteran as having a headache disability, the Board will focus on the evidence that relates to whether this disability clearly and unmistakably existed prior to service and whether there is clear and unmistakable evidence that the disability was not aggravated by service. The Veteran's June 1970 report of medical examination does not reflect that the Veteran suffered from a neurologic abnormality upon service entry. In the "summary of defects and diagnoses" section there was no notation, by the examiner, indicating that the Veteran suffered any disease or disorder. Conversely, on the report of medical history at service entry, the Veteran indicated that he had frequent or severe headaches. On the medical examination report, the examiner noted in the "history" section of the report that the Veteran's migraine headaches occurred "six to eight time a year-debilitating for only a few hours-NCD (not considered to be disqualify)." As such, migraine headaches were not "noted" at the time of entry. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). An August 1971 service treatment record documents the Veteran's treatment for severe headaches, noting that his headaches had increased in the past 2 months which was "most likely related to [his] previous cruise." A Medical Board report dated in October 1971 shows that the Veteran indicated that he had been suffering from headaches since the age of 2 and that the headaches were diagnosed as migraines at the age of 12. The Medical Board diagnosed the Veteran with migraine headaches and noted that the frequency of the Veteran's headaches had increased since service began. Post-service private treatment records reflect that the Veteran indicated that he had suffered from migraines since childhood. In a May 2006 private examination report, it was noted that the Veteran's headaches were usually induced by work stressors. At the November 2009 VA examination, the Veteran stated that his headaches occurred with stress and heat. It was noted that he worked in the boiler room while in service. The examiner diagnosed the Veteran with headaches and stated that the pain will continue with age. The examiner also stated that the was no military trauma to aggravate the condition. Consistent with the Veteran's statements, the medical evidence clearly and unmistakably shows that the Veteran's migraine headache condition existed prior to service. The medical evidence, however, does not clearly and unmistakably reflect that the condition was not aggravated by such service. Although the November 2009 VA examiner stated that there was no military trauma to aggravate the Veteran's headaches, service treatment records and the Medical Board report reflect that the frequency of the Veteran's migraine headaches had increased in service. Thus, because he was normal at service entrance with respect to his disability, and since the medical evidence does not clearly and unmistakably show that his migraine headache disorder both existed prior to service and was not aggravated by service, (and he currently has a diagnosis of headaches), the criteria for service connection have been met. ORDER Service connection for migraine headaches is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs