Citation Nr: 1632003	
Decision Date: 08/11/16    Archive Date: 08/23/16

DOCKET NO.  14-16 141	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for migraine headaches.

2.  Entitlement to service connection for a bilateral eye disability, to include photophobia.


REPRESENTATION

Appellant represented by:	Blinded Veterans Association


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife




ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served in the Pennsylvania National Guard.  He served on active duty from October 2004 to July 2005, and from September 2008 to October 2009.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The RO in Indianapolis, Indiana currently has jurisdiction over the claim.

In August 2014, the Veteran and his wife testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record.

With regard to the characterization of the claim for service connection for a bilateral eye disorder, the Board observes that the RO characterized such disorder as loss of vision with photophobia.  However, the United States Court of Appeals of Veterans Claims (Court) has held that a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  In light of the medical evidence of record, the Board has recharacterized the issue on appeal as entitlement to service connection for an eye disorder, to include photophobia.

The issue of entitlement to service connection for photophobia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

The competent and credible medical and lay evidence of record demonstrates that the Veteran's headache disability, currently diagnosed as non-prostrating migraine headaches, had its onset during the Veteran's second period of active duty service.


CONCLUSION OF LAW

The criteria for service connection for migraine headaches are met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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.  This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, 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).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

In making its determination, the Board is obligated to weigh the credibility and probative value of lay evidence against the remaining evidence of record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34.  Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (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.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376-77.

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).

A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88(2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)).

The Veteran contends that his migraine headaches, currently diagnosed as non-prostrating migraine headaches, started during his second period of active duty service and have continued since.

The Veteran's service treatment records are silent for any complaints of or treatment for headaches.  However, in his February 2010 claim, the Veteran indicated that he started to experience headaches in September 2009.  During his August 2014 hearing, the Veteran testified that he started to experience headaches while deployed in Iraq.  He stated that, instead of going to sick call to report his headaches, he used over-the-counter medication.  The Veteran's wife testified that she did not remember the Veteran complaining of headache prior to his second period of active duty.  He stated that after he returned from Iraq, he noticed that his head were getting worse, so he sought treatment from VA.

In May 2010, the Veteran underwent a VA optometry examination.  He reported no head or ocular injuries, but stated that his headaches had increased since his discharge.  He described his headaches as being right above his eyes with no visual disturbances, except that he sometimes saw "stars."  He reported using over-the-counter medication to treat his headaches.  The examiner noted that the Veteran's headaches were not related to his eyes and that they were most likely migraine headaches.  The Veteran was referred to a neurologist.

In May 2010, the Veteran also underwent a VA neurology examination for both his headaches and a right hand tremor (for which service connection has been granted).  The Veteran reported a history of migraine headaches that occurred once a week and lasted one to two hours.  He was diagnosed with non-prostrating migraine headaches and an essential tumor.  The examiner opined that it was at least as likely as not that both conditions were related to the Veteran's active duty service given that they both started during service.

Based on the foregoing, the Board finds that the Veteran's migraine headaches started during his second period of active duty service and have continued since.  

As noted above, the Veteran is competent to say that he began to experience headaches during service and that his symptoms have continued to the present.  See Layno, supra.  The Board also finds his reports of self-medicating during service instead of reporting to sick call are credible as such are consistent with the type and circumstances of his military service.  38 U.S.C.A. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service).  Accordingly, the Board acknowledges the Veteran's reports of in-service headaches, and his lay statements concerning the onset and continuity of symptoms are both competent and credible lay evidence of such.  Moreover, the Veteran's lay statements are also supported by the May 2010 VA examination that diagnosed the Veteran with non-prostrating migraine headaches and related that diagnosis to his active duty service.

Therefore, service connection for migraine headaches is warranted.


ORDER

Service connection for migraine headaches is granted.


REMAND

In May 2010, the Veteran underwent a VA examination to address the nature and etiology of his bilateral eye disorder.  During the examination, the Veteran stated that he began to experience extreme light sensitivity after he was discharged from active duty.  He was diagnosed with photophobia not related to any ocular findings.  He was given a prescription for darker transition lenses for the photophobia.  However, the examiner failed to offer any opinion as to the etiology of the disability.

Because the May 2010 VA examination opinion does not address the etiology of the Veteran's photophobia, an addendum opinion should be obtained.

On remand, any updated VA treatment records should be associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the electronic claims file any pertinent VA treatment records dated after December 27, 2011.

2.  Obtain an addendum opinion to the May 2010 VA examination from a person with appropriate expertise.  The claims file must be made available to, and reviewed by, the opinion provider.  If it is necessary to examine the Veteran to obtain the requested opinion, that should be arranged.

For each eye disorder, to include photophobia, state whether it is at least as likely as not (a 50 percent probability) that the condition was caused by or otherwise related to the Veteran's active duty service.  

In providing the requested opinion, the examiner should consider and address the Veteran's lay statements regarding the onset and continuity of his symptoms.

The rationale for all opinions expressed should be provided.  If it is not possible to provide the requested opinion(s) without resort to speculation, the examiner must provide the basis for that conclusion.

3.  After the above development has been completed, including any additional development deemed necessary, readjudicate the remanded issue.  If any of the benefits sought on appeal remain denied, furnish the Veteran with a supplemental statement of the case and afford him the opportunity to respond before the file is returned to the Board for further consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
















Department of Veterans Affairs