Citation Nr: 1751601 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-03 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1991 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2010, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO). A transcript of the hearing is of record. In July 2013, the Board remanded the case for further development. The case returned to the Board and, in a May 2016 decision, the Board denied service connection for migraine headaches. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), resulting in a March 2017 Joint Motion for Partial Remand (JMR) vacating the May 2016 decision. Pursuant to the JMR, the Board remanded this matter in July 2017 for further evidentiary development. FINDINGS OF FACT There is a relatively equal balance of evidence for and against whether the Veteran's migraines headaches manifested in service and are etiologically related to service, and such disability cannot be satisfactorily disassociated from service. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, his migraine headaches were incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). As noted in the March 2017 JMR, migraine headaches are considered an "organic disease of the nervous system," which is identified as a "chronic" disease under 38 USCA 1101 and 38 C.F.R. § 3.309(a). "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 CFR 3.303 (b). Service treatment records document a February 1992 head injury and complaint of migraine headaches. The Veteran has consistently asserted that his migraine headaches began in service and have continued since service. See RO hearing transcript dated in August 2010. The Veteran is certainly competent to report that he has experienced headaches and the severity of such headaches. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The medical evidence is clear that the Veteran has a current diagnosis of migraine headaches. A September 2013 VA examination of record has been determined to be inadequate due to its rationale by the March 2017 JMR. Subsequent to the Board's July 2017 remand, a September 2017 medical opinion was issued. The Board finds the probative value of this medical opinion to be limited as the examiner's rationale seems to be entirely dependent upon the lack of "objective medical" evidence linking the Veteran's reported in-service headaches to his currently diagnosed migraine headaches. The examiner does not address the Veteran's contention with respect to a continuity of headaches since his documented in-service complaints. While a "chronic disease" may not have been diagnosed during service in accordance with section 3.303(b), the Veteran's competent and credible testimony with respect to a continuity of headaches since his service certainly meets the criteria of 3.303(b). Based on the limited probative value of the VA examinations of record, the Board finds that the competent and probative evidence is at least equally for and against the Veteran's contention that his migraine headaches had their onset in service and have continued since service. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection is warranted for the Veteran's migraine headaches. 38 C.F.R. §§ 3.102, 3.303(b). Given the Veteran's competent and credible reports of migraine headaches beginning in service and continuing since service, and the shortcomings that limited probative value of VA examinations of record finding that the headaches are not related to service without consideration of lay evidence, the evidence is at least in equipoise as to whether the Veteran's current migraine headaches are related to his in-service headaches. Thus, the Board resolves all reasonable doubt in favor of the Veteran and finds that the Veteran's current migraine headaches had their onset during service and are etiologically related to service, and such disability cannot be satisfactorily disassociated from service. For these reasons, service connection for migraine headaches is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). ORDER Entitlement to service connection for migraine headaches is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs