Citation Nr: 1805202 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-42 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to service-connected tinnitus. ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to April 1970 and from May 1989 to May 1991. He also had a period of active duty for training (ACDUTRA) from August 1982 to August 1983, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2014, July 2015, and September 2017, the Board remanded the case for further evidentiary development. There has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran submitted additional argument following the most recent supplemental statement of the case (SSOC) without waiver consideration by the Agency of Original Jurisdiction (AOJ). As his argument is essentially duplicative to his prior submissions, initial AOJ review is not needed. 38 C.F.R. § 20.1304 (2017). FINDINGS OF FACT The Veteran's migraine headaches did not manifest in service and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for migraine headaches, to include as secondary to service-connected tinnitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection can be granted for a Veteran in any period of ACTDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6 (2017). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Analysis The Veteran seeks service connection for migraine headaches, to include as secondary to his service-connected tinnitus. Service treatment records from the Veteran's first period of active service are unavailable. Service treatment records from the Veteran's second period of service and ACTDUTRA period do not show any treatment or complaints related to migraines or headaches. A July 2009 private treatment record by Dr. C indicated that the Veteran was seen for his migraine headaches and that he reported he gets tinnitus and then headaches accompanied by dizziness, saw black specks, had nausea, and light-sensitivity for about three hours for at least two to five times per week. Dr. C diagnosed the Veteran with migraines and tinnitus. At a November 2009 VA examination, the Veteran asserted he developed headaches as a result of his service-connected tinnitus and that they occur about three times a week with throbbing pain that lasts for about three hours. The examiner opined that the Veteran's migraine headaches were not caused by or a result of his service-connected tinnitus. The rationale was that tinnitus does not cause migraine headaches. In April 2011, a private physician opined that although a July 2009 MRI showed no structural problems, the Veteran's tinnitus occurred before every migraine. The physician opined that "maybe that his migraines are being triggered by his tinnitus." A rationale was not provided. In April 2014, Dr. C provided a nexus opinion letter on behalf of the Veteran. Dr. C opined that the Veteran's migraine headaches are at least as likely related to his tinnitus. Dr. C. noted that she had reviewed the Veteran's records and was familiar with his medical history as she had treated him for migraines. She further explained that the rationale for her opinion was that the migraine headaches are intermittent and occur after episodes of tinnitus and the Veteran's 2009 MRI was normal. In July 2014 the Board remanded the appeal for a neurological evaluation and additional nexus opinion. Pursuant to the remand directives, the Veteran was afforded a VA examination in August 2014. Following record review and physical examination, the examiner opined that the Veteran's migraine headaches are less likely than not due to the service-connected tinnitus. The rationale was that migraine headaches are a central nervous system disorder that resulted from vasodilation of the cranial/cerebral brain vessels. It is a stand-alone entity that is neither adjunct to nor aggravated by the tinnitus. In July 2015, the Board remanded the appeal for a neurological opinion. In September 2016, the Veteran's claims folder was forwarded to a neurologist for review and an advisory (neurologic) medical opinion regarding the etiology of the Veteran's migraine headaches. The neurologist consultant and VA examiner both reviewed the information contained within the Veteran's claims folder. The neurologist and VA examiner opined that based on their review of the record and study of the medical literature, the Veteran's migraine headaches were less likely than not caused or aggravated by his service-connected tinnitus. The clinicians explained that their literature review identified one majority study on tinnitus and headaches. That study showed an association (correlation) between headaches and tinnitus, but not a causation as it suggested that tinnitus is present in only approximately 10 percent or less of students who reported migraines. The clinicians noted that the Veteran's tinnitus has been a longstanding issue, whereas the headaches are a more recent phenomenon based on an April 2008 audio examination where he his tinnitus started around 2003 to 2004. His migraine headaches were not diagnosed until 2009. The clinicians opined that the fact that the tinnitus occurred long before the headaches, makes it unlikely that the tinnitus caused his headaches. The clinicians further explained that migraine headaches are generally a very common disorder and therefore difficult to identify a single causation factor; however, given the temporal course of the tinnitus and headaches present in the Veteran, it was less likely than not his migraine headaches were caused by his service-connected tinnitus. In September 2017, the Board remanded the appeal for an addendum medical opinion regarding aggravation. In November 2017, the September 2016 VA examiner provided an addendum opinion. The examiner opined that it is less likely than not that the migraine headaches were caused by, or aggravated by the service-connected tinnitus. The rationale was that the medical literature did not support such a cause and effect relationship or aggravation between tinnitus and migraine headaches and there is no statistically significant evidence that would support causation between the two conditions. A current diagnosis of migraine headaches is established by the medical records and VA examination reports discussed above. However, for the reasons discussed below, service connection is not warranted. Migraine headaches were not shown in service. Rather, the initial onset was in 2009, which is many years after service. Further, the competent and persuasive evidence does not support a causal nexus- either on a direct or secondary basis. There are medical opinions both in favor and against causal nexus in this case. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. The April 2011 private medical opinion is favorable to the claim, but it does not provide the degree of certainty required for medical nexus evidence as it is speculative and unsupported by any clinical rationale. Therefore, the opinion is not probative. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Veteran has submitted multiple internet medical articles as evidence of a nexus between migraine headaches and tinnitus, including articles from: WebMD and American Headache Society. These articles contain general explanations, definitions, and discussions of migraine headaches and tinnitus separately or in conjunction with disabilities that the Veteran has not been diagnosed with, such as vertigo and temporomandibular joint (TMJ). Medical treatise evidence can, in some circumstances, constitute competent medical evidence, especially when combined with an opinion of a medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998); see also 38 C.F.R. § 3.159 (a)(1) (2017). However, generic information in a medical journal or treatise is normally too general and inconclusive to constitute the sole basis for establishing a medical nexus to a disease or injury. Mattern v. West, 12 Vet. App. 222, 227 (1999). The submitted articles are general in nature, do not specifically state a cause and effect relationship between migraine headaches and tinnitus, and have not been specifically related to the Veteran by a medical professional. For example, the American Headache Society article discusses "tinnitus may be related to spontaneous and aberrant neural activity at any level along the auditory axis" during headaches, but did not discuss that one caused the other. Treatise evidence must "not simply provide speculative generic statements not relevant to the Veteran's claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Here, the articles provided by the Veteran showed that a possible relationship between tinnitus and migraine headaches, but they are not specific to the facts of his case. Therefore, these medical treatises cannot serve as medical nexus evidence between the Veteran's migraine headaches and service-connected tinnitus. The Board has considered the Veteran's contentions that his migraine headaches are due to his service-connected tinnitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the potential relationship between the Veteran's migraine headaches and his service-connected tinnitus is complex in nature and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, while the Veteran is competent to describe his symptoms, he is not competent to opine on the complex medical question of whether his service-connected tinnitus caused his migraine headaches. The Board thus finds that the Veteran's lay evidence is insufficient evidence to establish etiology. The 2014 medical nexus opinion from Dr. C. is favorable and also probative because it was supported by clinical rationale. However, the Board finds that the September 2016 and November 2017 VA opinions to be more persuasive on whether the Veteran's migraine headaches are caused or aggravated by his service-connected tinnitus. These opinions were provided following review of the record and medical literature and are supported by more thorough and detailed rationales than that provided by Dr. C. These clinicians not only reviewed the record, to include prior physical examinations of the Veteran, but also the treatise evidence submitted by the Veteran and conducted their own review of accepted medical literature. With respect to the treatise evidence submitted by the Veteran, the examiners specifically indicated that it is not supportive of the claim. Further, the 2016 opinion was authored in part by a neurologist, who specializes in disorders affecting the brain. This opinion is very persuasive due to the neurologist's high level of expertise in the field related to the Veteran's claimed disorders. Moreover, the Board notes that prior VA opinions reached similar conclusions, which is additional unfavorable evidence with respect to causal nexus. In sum, the preponderance of the evidence weighs against service connection. The benefit of the doubt rule is not applicable. Service connection is not warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for migraine headaches, to include as secondary to service-connected tinnitus, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs