Citation Nr: 1326926 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 04-42 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Rebecca C. Patrick, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to October 1985 with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for headaches. The February 2004 rating decision also denied service connection for irritable bowel syndrome (IBS) and continued the denial of service connection for a bilateral eye condition. In September 2005, the Veteran testified during a videoconference hearing before the undersigned, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). A transcript of that hearing is of record. In a May 2008 decision, the Board denied service connection for a bilateral eye disability, IBS, and a disability manifested by headaches. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court issued a Memorandum Decision vacating the Board's May 2008 decision and remanding the claims to the Board for proceedings consistent with the Court's decision. In a July 2011 rating decision, the RO granted service connection for IBS, and in a March 2012 decision, the Board granted service connection for a bilateral eye condition, representing full grants of those benefits sought. Most recently, in March 2012, the Board remanded the claim of entitlement to service connection for a disability manifested by headaches for further development. The file has now been returned to the Board for further consideration. In June 2013, subsequent to issuance of the most recent Supplemental Statement of the Case (SSOC) in October 2012, the Veteran's attorney submitted additional argument and medical evidence in support of the claim on appeal. This evidence was accompanied by a waiver of RO consideration of the evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2012). The Board notes here that in its March 2012 remand, it found that correspondence dated in December 2011 revealed that the Veteran's attorney raised a claim of entitlement to service connection for sinusitis. The Board noted that the claim had thus been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ), and it referred the claim to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). By a review of the claims file, including consideration of Virtual VA, it does not appear that the RO has acted upon the Board's referred claim. Therefore, the Board again refers the claim of entitlement to service connection for sinusitis to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system reveal additional documents pertinent to the present appeal, specifically, updated VA treatment records. FINDING OF FACT There is probative evidence indicating that the Veteran's current migraine headaches began during active service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C.A. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied, including discussion of whether the September 2005 Board hearing was conducted in compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. § 3.103(c)(2) (2012) or whether there was substantial compliance with prior Board remands, is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of 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 establish service connection, the evidence must generally 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Organic neurological disorders, including migraines, are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any migraine headaches disability can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, such may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his current symptomatology. 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 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (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, supra. The Veteran's service treatment records dated in January 1984 indicate that he complained of a headache while reading and the treating professional requested an eye examination. At the time of his September 1985 service separation examination, he presented without a neurological abnormality, and denied any headaches. Private treatment records dated in December 1986 indicate that the Veteran complained of muscle tightness about the skull. From February 1987 to June 1987, the Veteran underwent VA treatment for headaches. Since that time, private and VA treatment records demonstrate consistent reports of headaches, with various treatment and testing. On VA examination in December 2005, the Veteran reported the onset of headaches in the mid-1980's, with sharp posterior pain in the back of the head and neck, without vomiting, nausea, or disorientation. He reported that the frequency of such had increased over the years, such that he experienced headaches daily. The examiner noted that review of the Veteran's service treatment records were silent for any history of treatment for headaches and diagnosed the Veteran with headaches, by history only, without evidence of occurrence or treatment while in service. In a supplemental opinion in July 2007, the same VA examiner noted the Veteran's report that his headaches began in the mid-1980's, and noted that he denied headaches prior to service. The examiner reported that he was unable to find mention of headaches in the Veteran's service treatment records. He opined that the Veteran had recurrent non-migraine headaches without significant history of the same while in service, and thus, such was less than 50 percent likely to be secondary to service. On VA examination in June 2011, the Veteran more specifically placed the onset of his headaches to 1983, and reported that such had a gradual onset, without particular injury or event. The examiner noted the Veteran's in-service treatment for headaches in January 1984. The VA examiner diagnosed the Veteran with tension headaches. In a July 2011 addendum, the examiner opined that it is less likely that the Veteran's tension headaches are related to the one instance of headaches during service. A private opinion, received in January 2012, is of record. The private physician reported that he had reviewed the Veteran's claims file. He disagreed with the prior diagnosis of tension headaches and reported that the Veteran most likely suffered from chronic migraines with and without visual aura. He provided a lengthy discussion of prior diagnoses and stated that the Veteran's symptoms met the International Classification of Headache Disorders (ICHD) criteria for chronic migraine. He opined that it is as likely as not that the Veteran's current headaches started during his service in January 1984 and is the same disability treated after service, from 1986 to the present. He noted prior treatment during service for seasickness, characterized by stomach complaints. He noted the Veteran's complaint of headaches in January 1984, while reading, and noted that an eye examination was requested. He stated that, in retrospect, visual difficulties are one of the most telling symptoms leading to the correct diagnosis of chronic migraine, and that in 1987, the Veteran was indeed treated for an occipital headache with diminished visual acuity in the left eye, with an unremarkable eye exam and normal head computed tomography (CT). He reported that such findings are consistent with migraines with visual aura. He also reported that the Veteran frequently complained of a crawling sensation over his scalp, and that such is a common phenomenon in migraine sufferers. He stated that the natural progression of untreated chronic migraines is often for headaches to increase in frequency, particularly when coupled with medication overuse. On VA examination in September 2012, the Veteran was diagnosed with mixed-type chronic headaches. He again reported his history; however, during this instance of examination, the Veteran reported that he frequently went to sick bay complaining of headaches. The examiner noted the January 1984 in-service treatment for headaches. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by service. He reasoned that the Veteran was seen only once during service for headaches, and the records do not support his claim that he frequently sought treatment. In an October 2012 addendum, the same VA examiner reported that while the private January 2012 opinion was positive, to render a positive etiological opinion, considering evidence of only one episode of in-service treatment for headaches, required speculation. In June 2013, the private physician who offered the January 2012 opinion supplemented the record with an additional opinion. He again reported that the Veteran's medical history and current symptoms remain entirely consistent with a diagnosis of chronic migraines. He cited the Veteran's pertinent medical history, including his in-service symptoms and post-service treatment, and reported that there is no evidence to indicate that the Veteran's current condition, chronic migraines, developed as a new syndrome after his separation from service. He opined that it was more likely than not that the Veteran's symptoms during service reflect part of his evolving headache syndrome. Following a review of the claims file, the Board concludes that the December 2005 and July 2007 VA opinions are not probative evidence in the current appeal, as both are based on the finding that the Veteran's service treatment records were silent for any treatment of headaches. As discussed above, such is not the case. Opinions based on inaccurate factual premises are of no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinions have no probative value when they are based on an inaccurate factual predicate, such as a self-reported and inaccurate history). Further, the Board concludes that the July 2011 and September 2012 VA opinions are inadequate and thus not probative evidence in the current appeal. The examiners failed to adequately address the Veteran's competent, credible and thus probative account of headache symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran has reported headaches since service, and his VA and private treatment records demonstrate treatment of such since 1986. While there are years during which no records indicate treatment for headaches, especially during the 1990's, there is no reason to doubt the Veteran's statements. He is competent to report that he experiences headaches. Layno, 6 Vet. App. 465, at 470; Jandreau, 492 F.3d 1372, at 1377. There is no evidence that he is not credible in this regard. It remains that the private opinions, received in January 2012 and June 2013, serve as probative evidence in the present appeal. The physician opined that it is as likely as not that the Veteran's current headaches started during his service in January 1984 and is the same disability treated after service from 1986 to the present. The opinions, by the same private physician, are credible because they based on a thorough review of the claims file and available treatment records and the physician offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question the opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As there is probative evidence, in the form of the January 2012 and June 2013 medical opinions, that the Veteran's current migraine headaches are related, or had their onset during active service, there is no need to resolve whether service connection may be granted for on the basis of migraine headaches to a compensable degree within one year of separation from service, or by October 1986; or continuous migraine headaches from October 1985 to the present. 38 U.S.C.A. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. (Continued on the next page) Service connection may be granted when all the evidence establishes a nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is probative evidence of migraine headaches, as well as evidence of in-service headaches and symptoms attributed to the evolvement of migraine headaches by probative medical evidence. Significantly, there is probative evidence of a medical nexus, between active service and the Veteran's current migraine headaches. As such, the claim of entitlement to service connection for migraine headaches is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for migraines headaches is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs