Citation Nr: 18145965 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-18 766A DATE: October 30, 2018 ORDER Entitlement to service connection for headaches, claimed as migraines, is denied. FINDING OF FACT The preponderance of the evidence is against finding that a chronic headache disorder was demonstrated in service, that migraine headaches were compensably disabling within a year of separation from active duty, and that there is a nexus between the current diagnosis of a headache disorder and service. CONCLUSION OF LAW A chronic headache disorder was not incurred in or aggravated by service, and migraine headaches may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 110, 1111, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1983 to September 1987, from October 2001 to August 2002, and from October 2003 to November 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The case was remanded in December 2015 and February 2017 for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c)(6). 38 U.S.C. § 7107(a)(2). With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran contends that the headaches he reported during his military service are related to his current headaches. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of vascular headaches, and while the appellant did have headaches during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of vascular headaches began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303 (b). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran’s claim. See 38 C.F.R. § 3.303 (b). The chronicity provision of 38 C.F.R. § 3.303 (b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Additionally, where a veteran served ninety days or more of active service, and an organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year after the date of separation from active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Among the chronic disorders listed under 38 C.F.R. § 3.309 (a) are arthritis and organic diseases of the nervous system. VA has recognized migraine headaches and glaucoma to fall within the classification of organic diseases of the nervous system. See M21-1MR, Part IV, Subpart iv, Ch. 4, Sect. G (recognizing migraine headaches as an organic disease of the nervous system). The Veteran has been provided with several VA examinations for his complaint of headaches. Examinations in February 2010, August 2010, and February 2016, however, were inadequate for rating purposes as explained in prior remands. The most recent examination was conducted in February 2018. That examination commented that the Veteran’s headaches were vascular in nature and were likely not caused by an external source. The examiner reviewed the Veteran’s claims file and noted that it lacked objective evidence of a service related headache condition during the Veteran’s first period of active duty. The Veteran did report frequent headaches on his entrance examination but he was presumed sound at enlistment. The examiner further commented that there no chronic headache disorder was found during any period of active duty and that the headaches mentioned in the military treatment records were related to acute illness and were entirely separate from the current vascular headaches. It is notable that the earlier VA examinations also found no connection between the appellant’s current headache symptoms and those referenced while on active duty. The February 2016 examination detailed the Veteran’s history of headaches complaints and noted that his headaches were usually short in duration and that, as of 2010, the headaches were no longer reported. Primary care notes from June 2011, February 2012, May 2013, and November 2011 report no headaches or any discussion of headaches. The February 2018 VA examiner opined that the Veteran’s headaches were not at least as likely as not related to an in-service injury, event, or disease, including his in-service complaints of headaches. The rationale offered is consistent with the evidence of record, and the examiner who prepared the February 2018 opinion was a neurologist. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has maintained that his headaches in service are related to those following service and that the headaches occurred continuously during service. The Veteran has stated that the headaches started around his time at Ft. Hood in 2003 and continued intermittently since. He has also stated that he was medically retired due to headaches. The record contains no medical treatment records showing compensably disabling migraines within a year of the claimant’s separation from active duty, and there is no evidence that the claimant was medically retired from service due to a chronic headache disorder. Indeed, the Veteran’s unresolved neurological complaints from October 2010 were not cited as the reason for release from active duty by Ft. Hood. Nor were they listed as his reason for discharge from the National Guard on his NGB Form 22. The reason listed for his discharge from the National Guard in May 2004 was “Para 8-27i NGR 600-200, Failure to obtain required Physical per AR 40-501 & NGR 40-501.” While the Veteran believes his headaches are related to an in-service injury, event, or disease, as a lay person untrained in the field of medicine he is not competent to provide a nexus opinion in this case. This issue is medically complex, and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). There is no competent nexus opinion of record that connects a current headache disorder to the claimant’s active duty service. Consequently, the Board gives more probative weight to the VA medical opinions. In sum, the preponderance of the evidence indicates that there is no competent, medical evidence showing that the Veteran has a headache disorder that is related to any event in service. The Board has considered the benefit of the doubt rule, but the preponderance of evidence is against the claim. See 38 U.S.C. § 5107 (b). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel