Citation Nr: 1341364 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-32 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service-connection for migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran had active service from June 1996 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veteran Affairs (VA). In January 2011, the Board remanded the service connection claim on appeal. There has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified before the undersigned Veterans Law Judge at the RO in August 2010. A transcript of the hearing has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's migraine headaches manifested during service or to a compensable degree within one year of service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, migraine headaches were incurred during the Veteran's period of active service. 38 U.S.C.A. §§ 1101, 1110, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden 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). Organic neurological disorders, including migraines, are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, migraine headaches 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. The Veteran contends she had migraine headaches in service and they have continued since. The record shows the Veteran has a current diagnosis of migraine headaches. See May 2011 VA examination. The Veteran was diagnosed with tension headaches in-service and migraine headaches within a year post-service. See March 1999 VA Service Treatment Records and September 1999 USAG Ansbach narrative summary of labor and delivery. The Board has considered that a VA examiner in June 2008 reported he could not provide an opinion on whether her disability is related to service without resort to speculation. The Board has also considered that a May 2011 examiner provided a negative opinion as to whether her disability is related to service based on a lack of chronicity. However, the Board is concerned that the VA examiners did not adequately consider the Veteran's lay statements that support a finding of chronicity. As noted, symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Given the Veteran's in-service complaints of headaches, the fact that frequent or severe headaches were endorsed at separation, the diagnosis of migraines immediately after separation, and the Veteran's own statements indicating that the headaches she currently experiences are of the same nature and type experienced in service, the Board concludes that the evidence is at least in equipoise as to whether her claimed migraine headaches manifested during service or to a compensable degree within one year of service. ORDER Entitlement to service-connection for migraine headaches is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs