Citation Nr: 1507123	
Decision Date: 02/18/15    Archive Date: 02/26/15

DOCKET NO.  11-03 799	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for headaches as secondary to the service-connected disability of cervical spine degenerative disc disease (DDD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 2001 to January 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The Board has recharacterized the issue of entitlement to service connection for migraine headaches to more broadly encompass entitlement to service connection for a headache disability, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2013, and a copy of the hearing transcript is of record.  At the June 2013 hearing, the Veteran submitted additional evidence directly to the Board.  At that time, he also submitted a written waiver of local consideration of this evidence.  This waiver is contained in the VA claims file.  See 38 C.F.R. §§ 19.9, 20.1304(c) (2013).

In June 2014, the Board remanded the claim for further development.  

This appeal was processed using VBMS (the Veterans Benefits Management System). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

Occipital headaches are likely secondary to service-connected cervical spine DDD.



CONCLUSION OF LAW

The criteria for service connection for occipital headaches are met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310(a) (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision.

II.  Analysis

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.

Service connection also may be established on a secondary basis for a disability, shown to be proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2014).  Establishing service connection on a secondary basis requires 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.; Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran contends that the headaches he currently experiences are related to his service-connected cervical spine DDD.

Historically, the evidence of record shows that the Veteran was diagnosed with a herniated disc in his neck at C5 and C6 in August 2005.  Following his January 2009 separation from service, a December 2009 rating decision granted service connection for cervical DDD.

Following service, VA treatment records dated March 2009 to March 2014 document treatment for headaches.

On December 2009 VA examination, the Veteran reported throbbing headaches 2 times per month lasting 2 to 7 hours.  He occasionally had retro-orbital and bitemporal pain with associated visual disturbance.  He had no associated nausea or vomiting, and headaches were not preceded by an aura.  He had associated phonophobia and photophobia.  The examiner opined that the Veteran's migraine headaches are not secondary to his cervical DDD, because cervical DDD is not an etiology of migraine headaches as migraines are caused by a membrane defect within the brain.  However, the examiner stated that the Veteran's neck and occipital pain are symptoms of his cervical DDD.

In January 2010, the Veteran submitted lay statements from a co-worker and a fellow soldier regarding their observations of the Veteran's ongoing headaches.  

On June 2012 VA examination in connection with the Veteran's increased rating claim for cervical spine DDD, the examiner noted that the occipital portion of the Veteran's headaches are attributable to his cervical spine DDD.

At the Veteran's June 2013 Board hearing, the Veteran asserted that he was misdiagnosed for migraine headaches, and believes his headaches fall under the occipital neuralgia or occipital headaches categories.  In support, the Veteran submitted articles which state that occipital neuralgia is a commonly missed headache diagnosis.

On August 2014 VA examination, the Veteran reported pain and pressure behind both eyes and in the temple area, sensitivity to light and sound, seeing spots, photophobia, and phonophobia.  He denied nausea.  A cerebral MRI scan was unremarkable.  The examiner diagnosed migraine and tension headaches.  The examiner also incorrectly noted that the Veteran was already service-connected for occipital headaches associated with his cervical spine condition and associated occipital headaches.  The examiner explained that the Veteran's type of headache is due to irritation of the C2 and C3 nerve roots, which supply the greater and lesser occipital nerves.  However, the examiner opined that the headaches/pressure behind the eyes and in his temples, the photo/phonophobia, and visual disturbance is part of the migraine syndrome and is not related to his cervical spine DDD.

Based on a review of the probative medical and lay evidence under the laws and regulations as set forth above, the Board finds that the Veteran's headache disability, characterized by occipital headaches, is secondary to cervical spine DDD.  While the Veteran has a primary diagnosis of migraine headaches, the probative medical evidence of record is against a showing that his migraine headaches are related to his cervical spine DDD.  Rather, the medical evidence-in particular, the December 2009, June 2012, and August 2014 VA opinions-relate the Veteran's occipital headaches to his cervical spine DDD.  To this extent, service connection for a headache disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for occipital headaches secondary to cervical spine DDD is granted.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs