Citation Nr: 1340320 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-31 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for chronic migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from September 2007 to July 2009. In January 2009, a Medical Evaluation Board (MEB) was convened and the body recommended that the Veteran be discharged from active duty due to a temporary, physical disability. Thereafter, the Veteran was placed on the temporary disability retired list (TDRL), from which he was ultimately discharged in July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In the December 2009 rating decision, the RO also denied the Veteran's claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU). The Veteran did not express disagreement with this determination in a timely manner, and thus, that issue is not presently before the Board. Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). FINDINGS OF FACT 1. The October 2006 examination for service enlistment acknowledged the Veteran's remote history of migraine headaches as a teenager, but his head and neurologic functioning was normal on clinical examination, and he was deemed qualified for active duty and was assigned a score of "1" to each aspect of the PULHES profile, representing a high level of fitness; thus, migraine headaches were not noted at entrance. 2. The record reflects that migraine headaches clearly and unmistakably existed prior to the Veteran's entrance onto active duty, but there is not clear and unmistakable evidence that they were not aggravated by service. 3. The Veteran has chronic migraine headaches related to his active military service. CONCLUSION OF LAW 1. The criteria for service connection for chronic migraine headaches have been met. 38 U.S.C.A. §§ 1110; 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his pre-existing migraine headaches had resolved prior to his active duty and, because of the stress and rigors of active duty, reoccurred and were permanently aggravated in frequency and severity during his active duty. "[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment . . . ." 38 U.S.C.A. § 1111 (West 2002); see also 38 C.F.R. § 3.304(b) (2013) (implementing regulation for section 1111). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of [entrance] examination does not constitute notation of such conditions but will be considered together with all other material evidence in determinations as to inception." 38 C.F.R. § 3.304(b)(1). The Veteran's October 2006 Reports of Medical Examination and Medical History reflect the Veteran's reports and examiner's acknowledgment of his history of experiencing cluster migraine headaches during late adolescence. However, there is no indication on either report that the Veteran experienced migraine headaches contemporaneous with his entrance to active duty. To the contrary, the examiner noted that the Veteran had not experienced migraine headaches in nearly three years. As the October 2006 entrance examination does not note a contemporary diagnosis of migraine headaches, the presumption of sound condition applies to this disability. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). "'[A]s a matter of law, . . . the presumption of soundness [could be] . . . rebutted by clear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability].' Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Federal Circuit favorably cited Doran, and stated that a later medical opinion based on statements made by a veteran about the pre-service history of his condition may be sufficient to rebut the pre-existence prong of the presumption of soundness, notwithstanding the lack of contemporaneous clinical evidence or recorded history. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). Thus, in the absence of any contention that the appellant never made the statements attributed to him, those statements alone may rebut the preexistence prong of the presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both pre-existing and not aggravated by service. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. This statutory provision is referred to as the "presumption of soundness," the rebuttal of which requires proof both as to pre-existence (the pre-existence prong) and lack of aggravation (the aggravation prong). Aggravation of a pre-existing disorder not found on the service entrance examination can be rebutted by VA only if there is clear and unmistakable evidence of no increase in disability during service, or clear and unmistakable evidence that any increase was due to the natural progress of the disability. Wagner, 370 F.3d at 1096. Here, it is undisputed, and the Veteran concedes, that he experienced migraine headaches prior to his active duty. Furthermore, the record includes pre-service treatment records reflecting a diagnosis of and treatment for migraine headaches as well as reports from several medical professionals, to include the October 2006 entrance examiner and October 2009 VA examiner, who unequivocally state that the Veteran experienced migraine headache prior to active duty. Such evidence constitutes clear and unmistakable evidence of the pre-service existence of migraine headaches. Thus, the question is whether it is undebatable that the Veteran's pre-existing migraine headaches did not undergo an increase in severity beyond the natural progress of that condition. As noted previously, VA has the burden to rebut the aggravation prong of the presumption of soundness. A claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn, 25 Vet. App. at 235. The record conclusively establishes that the Veteran's migraine headaches increased in frequency and severity during his service. As noted above, the Veteran's entrance examination reflects that he had not experienced migraine headaches in nearly three years, although, the Board observes that the Veteran also provided a statement to the October 2006 entrance examiner that he had a migraine headache three months prior. Nonetheless, as the Veteran was finishing Basic Training, his migraine headaches increased in frequency and severity, eventually calling into question whether he was fit to carry out his assigned duties. Specifically, the medical report from the January 2009 MEB reflects that, by October 2008, the Veteran's migraine headaches were occurring 3-4 times per week and were nonresponsive to medication. This escalation in symptomatology is well-documented in the Veteran's service treatment records by Drs. Harrison and Dover, who both recommended that the Veteran be medically discharged because of his migraine headaches. While not dispositive on the matter, the Board notes that the March 2009 Medical Board Report approved the Veteran for medical separation from the Air Force because his chronic migraine headaches, which pre-existed his active duty, were permanently aggravated by service. Despite this evidence, the October 2009 VA examiner stated "[t]here is no evidence that the [V]eteran's military service permanently aggravated his pre-existing migraine condition beyond it's [sic] natural progression." However, this opinion is afforded little, if any, probative weight, as it was offered without rationale, and the examiner did not attempt to reconcile the opinion with the overwhelming evidence, recounted above, that the disorder increased in severity. The United States Court of Appeals for Veterans Claims (the Court) has firmly held that such opinions, based on an inaccurate factual premise and offered without accompanying rationale, are inadequate for adjudicating claims for service connection. Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993). Thus, there is not clear and unmistakable evidence that the Veteran's migraine headaches underwent an increase in severity during service. The remaining question for the Board is, in light of the absence of clear and unmistakable evidence of no increase during service, whether any in-service increase was undebatably due to the natural progress of the condition. While there is a discrepancy concerning how long had passed since the Veteran's most recent migraine headache and his entrance to active duty (nearly three years or three months), there is no medical evidence that the normal progression of the Veteran's pre-existing migraine headache disorder includes such a latent period followed by a sharp escalation in symptoms. The only medical opinion directly addressing this point is that from the October 2009 VA examiner; however, as noted above, this opinion is afforded little probative weight because of its lack of accompanying rationale and/or reconciliation with the contrary medical evidence. Certainly, the examiner's opinion does not rise to the standard of "clear and unmistakable evidence" as called for by the applicable VA laws. In any case, the burden is on the government to show that there was no aggravation during service. Because the Veteran need not submit any evidence that the preexisting disability was aggravated, and because the evidence is not undebatable that the increase in disability was due to the natural progress of the disease, the aggravation prong of the presumption of soundness has not been rebutted. Although somewhat illogical, when the presumption of soundness is not rebutted, the claim is converted into one for service connection rather than aggravation even though it is shown that the Veteran's migraine headaches existed prior to service. See Wagner, 370 F.3d at 1094. The analysis does not end, however, as "[t]he presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof." Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see also Gilbert v Shinseki, 26 Vet. App. 48, 54 (2012). In the Veteran's case, the evidence from VA examination reports, treatment records, and his own statements shows that he currently has migraine headaches. The evidence also tends to show that this is the same condition that had its onset during service with application of the presumption of soundness. Accordingly, as all the elements of the claim are substantiated, service connection for chronic migraine headaches is warranted. ORDER Service connection for chronic migraine headaches is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs