Citation Nr: 1801389 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a head disability, to include traumatic brain injury (TBI) residuals and/or migraine headaches. REPRESENTATION Appellant represented by: Charles D. Romo, Attorney ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to October 2004, from September 2006 to August 2007, and from April 2009 to May 2010. This appeal is before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2016, the Board remanded issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for a left knee disability for further development. In September 2017, the RO granted service connection for both issues. Consequently, those issues are no longer on appeal. The Board also remanded the present issue of entitlement to service connection for TBI for further development. The issue has now returned to the Board for adjudication. The Board has recharacterized the claim for service connection for TBI as a claim for service connection for a head disability to include TBI residuals and migraine headaches. As discussed further below, the record indicates that the Veteran may be entitled to service connection for migraine headaches, which the Veteran has reported in conjunction with development of his TBI claim, even if they are not residuals of a TBI. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled); see also Douglas v Derwinski, 2 Vet. App. 435 (1992) (all pertinent legal theories must be considered). FINDING OF FACT The Veteran suffers from migraine headaches that were incurred in active service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA provided required notice in an August 2010 VCAA letter. VA obtained updated VA medical records, identified private treatment records, and lay statements. VA conducted an October 2010 examination of the Veteran's claimed TBI, and later obtained a February 2017 addendum opinion in accordance with the Board's June 2016 remand instructions to render an adequate examination of the Veteran's claimed disability on appeal. Therefore, VA has satisfied its duties to notify and assist, and adjudication of this appeal does not prejudice the Veteran. II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For a Veteran who served 90 days or more of active duty after December 31, 1946, there is a presumption of service connection for certain enumerated "chronic diseases", such as an organic disease of the nervous system (such as migraine headaches), if the disability manifests to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (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, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The Board must then determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis The Veteran was a U.S. Army and Army National Guard cavalry scout who completed multiple deployments to Iraq and Afghanistan. Military personnel records received October 2016 include multiple documents indicating that the Veteran participated in combat. In May 2010, the last month of the Veteran's most recent period of active service, and four weeks after the Veteran returned from his most recent deployment, the Veteran underwent a VA TBI cognitive impairment consult. The attending physician noted the Veteran reported various explosive blast exposures from his deployments (two incidents in 2003, one in 2006, and one in 2007). Among potential current neurobehavioral symptoms, the physician noted dizziness, headaches, loss of balance, poor concentration, forgetfulness, sleep difficulties, anxiety, and irritability. Specifically regarding headaches, the physician detailed that the Veteran reported he started to get migraines in 2004, which are accompanied by visual changes, nausea, and vomiting. The physician found the Veteran met the criteria for both PTSD and "mild TBI." However, the May 2010 physician did not delineate what symptoms could be attributed to either diagnosis. VA subsequently arranged a September 2010 compensation and pension examination for the Veteran's claimed TBI. The September 2010 VA examiner noted substantially the same reported symptoms as the May 2010 physician; however, the September 2010 VA examiner opined the Veteran's mild TBI had "resolved with no residuals." The examiner went on to state that "any emotional/behavioral/cognitive signs and symptoms identified are part of a mental disorder and do not represent residuals of TBI." The September 2010 VA examiner then noted that a precise psychological diagnosis was outside the scope of her expertise. The September 2010 VA examiner also opined against any relation between reported dizziness, balance issues, and headaches to TBI, but diagnosed the Veteran with migraine headaches with an in-service onset of March 2003 based on a March 2003 service treatment record (STR) reflecting that the Veteran sought treatment for a severe headache. The March 2003 STR predates the Veteran's first reported blast exposure, as the Veteran's DD-214 for the active duty period between July 2000 and October 2004 notes that the Veteran deployed to Iraq from April 2003 to March 2004. The RO subsequently denied the Veteran's claim for TBI residuals based primarily upon the September 2010 VA examination. The Board remanded the TBI claim in June 2016 for a psychiatric opinion as to whether the Veteran's "emotional, behavioral and cognitive signs are attributable to his diagnosed psychiatric disorder(s)." At the time, the Veteran had a pending service connection claim for an acquired psychiatric disorder (claimed as PTSD) on appeal that was also remanded for further medical opinion. A February 2017 VA examiner found the Veteran met the criteria for PTSD and persistent depressive disorder due to service. The February 2017 examiner attributed symptoms of depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, memory loss, disturbances in motivation and mood, difficulty adapting to stress, and an inability to establish and maintain effective relationships to the Veteran's mental disorders. Concerning TBI, the February 2017 examiner stated: While a TBI event can result in cognitive residuals, these occur in close proximity to the event and generally resolve within 3-6 months. The scientific literature does not indicate that there is an additive effect from multiple insults to the brain, except for special situations, for example, long term assaults such as seen in professional football players or professional boxers. In my professional opinion, all the Veteran's emotional, behavioral and/or subjective memory loss are attributable to his diagnosed PTSD and Persistent Depressive Disorder. Based upon the February 2017 VA examination, the RO granted service connection for an acquired psychiatric disorder, and continued the denial of service connection for TBI with a finding that any of the Veteran's emotional, behavioral and cognitive symptoms were attributed to the Veteran's psychiatric disorder. The Board likewise here finds the evidence of record to be insufficient for a grant of service connection for TBI residuals. As stated previously, a May 2010 VA TBI consult noted the Veteran presented with PTSD and mild TBI symptoms, but did not specify which symptoms belonged to which diagnosis. A subsequent September 2010 VA examiner opined that any TBI symptoms had resolved, and that "emotional/behavioral/cognitive signs and symptoms" were due to mental disorder-a finding corroborated by the February 2017 VA examination. The September 2010 also opined against migraine headaches being related to TBI, as they predated the Veteran's reported blast exposures. After reviewing all remaining evidence of record, to include VA and private treatment records, the Board can find no other evidence to outweigh the negative evidence concerning whether the Veteran symptoms that are due to TBI residuals. Consequently, the abovementioned examination reports constitute the most probative evidence as to whether the Veteran suffers from TBI residuals due to service, and as written, ultimately weigh against such a finding. Nevertheless, the Board has expanded the Veteran's claim as a claim for entitlement to service connection for a head disability, to include TBI residuals and migraine headaches. As discussed previously, the record does not support service connection for TBI residuals. However, the record does support service connection for migraine headaches. The VA Compensation and Pension Manual categorizes headaches as a potential "physical" symptom of TBI, as opposed to "cognitive" or "behavioral/emotional." M21-1, III.iv.4.G.2.d. Consequently, a grant of service connection for migraine headaches would not be duplicative of the Veteran's receipt of service connection compensation for an acquired psychiatric disorder-as only previously contended emotional, behavioral, and cognitive symptoms have been attributed to the Veteran's acquired psychiatric disorders, with no finding of migraine headaches as a manifestation of such. In essence, the Veteran's migraine headaches had fallen to the wayside due to the September 2010 VA examination finding them as unrelated to TBI, and a subsequent fixation on other cognitive, behavioral, and emotional symptoms that were eventually attributed to psychiatric disorders. While finding that the Veteran's TBI had resolved, the September 2010 VA examiner rendered a diagnosis of "migraine with aura - not due to TBI." The examiner went on to state that, "[the Veteran] was diagnosed with headache, cephalgia . . . on 3/6/2003[.] . . . [Which is] the same [as] 'migraine with aura'. . . . Thus[,] onset of migraine [headaches] [was] in military service in 3/2003." A March 2003 service treatment record (STR) reflects, "Past 3 days [the Veteran] has had a real bad headache. Photophobic and sensitive to sound. . . . Never had a headache like this before." The March 2003 STR predates the Veteran's first reported blast exposure in his April 2003 to March 2004 Iraq deployment. The May 2010 TBI consult physician reported it was uncertain as to whether the Veteran's explosive blast exposures induced or aggravated the Veteran's migraine headaches, and the September 2010 VA examiner found them to be wholly unrelated. While such facts do not help the Veteran's claim with respect to TBI residuals, these facts do weigh in favor of direct service connection for migraine headaches. Specifically, the May 2010 TBI consult and September 2010 VA examination establish that the Veteran suffered from migraine headaches within the appeal period given the proximity of those reports to the Veteran's June 2010 original service connection claim for TBI. The Veteran's December 1999 entry examination contains no mention of a migraine headache condition, and thus, the March 2003 STR concerning headaches establishes an in-service incurrence of the disease. The September 2010 VA examiner's opinion concerning a March 2003 onset of migraine headaches constitutes medical evidence of a nexus between the Veteran's current disability and the in-service disease. The Board thus finds the record presents all three required elements of direct service connection for migraine headaches, independent of any claimed TBI. Consequently, the Board shall grant service connection for migraine headaches on a direct basis. As such, the Board need not analyze whether the Veteran is entitled to service connection for migraine headaches on a presumptive basis for chronic diseases. ORDER Entitlement to service connection for migraine headaches is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs