Citation Nr: 1325060 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 01-08 303 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES Entitlement to service connection for chronic headaches. Entitlement to service connection for depression. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) in July 2008, which vacated an April 2007 Board decision which denied the benefits sought. The issue on appeal initially arose from a November 2000 rating decision by the White River Junction, Vermont RO. In January 2002, the Veteran testified before a Veterans Law Judge at a personal hearing at the Pittsburgh, Pennsylvania RO. A copy of the transcript of that hearing is of record. In June 2003, the Board remanded the case for further development. The case subsequently was transferred to the RO in Phoenix, Arizona. In January 2006, the Board denied service connection for a migraine disorder and major depression as secondary to a service-connected right eye disorder, and the Court remanded the case in September 2006 for additional development. The Board again remanded the case in January 2009. In September 2012, the Veteran was notified that the Veterans Law Judge who had held the January 2002 hearing had retired. His attorney responded that no additional hearing was necessary and that the Veteran accepted review by another Veterans Law Judge. The Board supplemented the record with a medical opinion from a VA neurologist with particular expertise in traumatic brain injuries in May 2013. 38 C.F.R. § 20.901(a). The Veteran and his attorney have been provided with a copy of this opinion. The Veteran's attorney has waived any further due process waiting periods and requested a decision as soon as possible. FINDINGS OF FACT 1. The Veteran's chronic headaches are post-traumatic in nature, and are related to an injury sustained during service. 2. The Veteran's depression is secondary to his chronic headaches. CONCLUSIONS OF LAW 1. Service connection for chronic headaches is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 20.901(a) (2012). 2. Service connection for depression as secondary to chronic headaches is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 20.901(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his currently-shown chronic headaches are related to a fall and eye injury sustained during service in 1964. He further contends that his chronic depression is secondary to the debilitating headaches. In light of the conclusions reached below, an exhaustive explanation of the VA's duties to notify and assist the Veteran in the development of his claim is not necessary. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 , 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially 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). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for 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 progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b) ; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Thus, establishing service connection on a secondary basis requires competent evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Historically, the Veteran fell and struck his eye on a rock in March 1964. He was hospitalized for sixteen days and treated with bilateral eye patches for the first five days. During the 1990s, he developed chronic migraine headaches, of such severity that he was unable to retain his employment. He credibly reports that he had been experiencing headaches of lesser severity since the injury in 1964, however. The evidence of record contains multiple medical opinions, both for and against the claims. Many of these opinions focused on the question of whether eye strain resulting from the service injury could cause the Veteran's headaches. In November 2012, however, a private physician presented a medical opinion involving a different theory of entitlement: that the in-service injury caused a traumatic brain injury and thus the Veteran's headaches are post-traumatic in nature. To evaluate this new theory, the Board obtained an informed medical opinion from a VA neurologist who is an expert in traumatic brain injuries. The May 2013 opinion from this neurologist confirms the November 2012 medical opinion that the Veteran's headaches are post-traumatic in nature. In pertinent part, the neurologist provided the following conclusions and explanations: My medical opinion regarding this Veteran's case is that [the] Veteran did suffer a mild traumatic brain injury with resultant post-traumatic headaches. It is also my opinion that this Veteran has had ongoing depression which can be very well related to his headaches chronic pain. Therefore it is as likely as not that [the] Veteran's mild traumatic brain injury with resultant posttraumatic headaches are related to his initial fall/injury to right eye/injury to right side of head which he sustained in March 1964. ... Since chronic pain/chronic headaches can lead to chronic depression it is also as likely as not that his ongoing depression is also related to his chronic headaches and to his initial fall/injury to right eye/injury to right side of head which he sustained in March 1964. ... Rationale for above decision: Mild traumatic brain injury in certain cases can cause posttraumatic headaches and linger on for years. Similarly chronic pain/chronic headaches can cause ongoing depression. The Board finds that this opinion amply supports the Veteran's claims for service connection for headaches and for secondary service connection for depression. The benefits sought are therefore granted. ORDER Service connection for chronic headaches is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for depression is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs