Citation Nr: 1332857 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-26 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1998 to August 1998, June 1999 to August 1999 and October 2001 to October 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the claim was subsequently transferred to the RO in Atlanta, Georgia. A Decision Review Officer (DRO) hearing was held in this matter in August 2006. A transcript of the hearing can be found in the VBMS paperless claims processing system. In August 2010 and June 2013, the Board remanded the case to the RO for additional evidentiary development. As discussed below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's currently diagnosed migraine headaches are related to her military service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has statutory duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Compliance with Prior Board Remands The Board previously remanded this matter in August 2010 and June 2013. The purpose of the August 2010 remand was to schedule the Veteran for a Travel Board hearing. Appropriate notice of the Veteran's Travel Board hearing was provided in a June 2012 letter. However, the Veteran did not appear at the July 2012 Travel Board hearing and no good cause was provided for her failure to appear. The case was remanded in June 2013 in order to obtain any and all updated treatment records and a VA migraine examination. The Veteran did not identify any further medical treatment records. A VA migraine examination was scheduled in July 2013; however, despite receiving appropriate notice of the VA examination, the Veteran failed to appear for the examination. To date, the Veteran has not provided any good cause for her failure to appear at the July 2013 VA examination. It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what she experiences; i.e., her statements are competent to report that she has experienced headaches, light and sound sensitivity, difficulty sleeping and nausea. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran claims her migraine headaches began in-service and have continued to the present time. See DRO Hearing, August 2006, pgs. 4-5; see also VA Examination, August 2004. A January 1998 Report of Medical History documents the Veteran had no history of frequent or severe headaches and no migraine headaches were noted on the Veteran's January 1998 Report of Medical Examination. A July 2002 Pre-Deployment Health Assessment noted the Veteran's medical problems were "[n]one" and she was found to be deployable. The record shows that on February 2003 and August 2003 Post-Deployment Health Assessment forms, the Veteran complained of having headaches during her deployment. Additionally, immediately upon separation from active duty in October 2003, the Veteran filed a claim for service connection for migraine headaches. The Veteran was afforded a VA examination in August 2004, wherein she was diagnosed with migraine headaches. Thus, the Veteran has a current diagnosis of migraine headaches. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). The Veteran's statements concerning her migraine headaches beginning in-service and continuing to the present are credible, as they are consistent with the medical record. Thus, the Veteran's lay statements of experiencing migraine headaches since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of her migraine headaches. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. The Board finds the evidence is in relative equipoise as to whether the Veteran's migraine headaches are related to service. The evidence of record demonstrates that the Veteran currently has migraine headaches; that she had no history of migraine headaches prior to deployment; that during deployments she suffered from headaches; that she first experienced migraine headaches in-service; that she filed for service connection for migraine headaches immediately upon separating from service; and that, she has experienced migraine headaches since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. See 38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for migraine headaches is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs