Citation Nr: 18158810 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-53 837 DATE: December 18, 2018 ORDER Entitlement to service connection for migraines is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her migraine disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for migraines have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 7104, 7105 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.3 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran appeared for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. Entitlement to service connection for migraines 1. Legal Principles Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for a disease first 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) (2018). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, 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 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service, (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. Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (2012). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Discussion The Veteran contends that her migraines were caused by and started in service. Specifically, in a July 2016 statement, she claims that her migraines were caused by the constant, substantial noise in the ship’s engine room. The Veteran further alleges that she constantly complained about severe headaches due to the engine sound and that she never had headaches or severe migraines before she entered the military. The Veteran’s service treatment records (STRs) contain an October 1990 entry noting that the Veteran experienced a severe headache in conjunction with nausea and sensitivity to light, for which she was admitted to the hospital for days; the headache was found to be related to a recurrent meningitis. The report of a November 1990 Medical Board mentions that the Veteran had a history of headaches during boot camp. Post-service medical records show that the Veteran continuously sought medical attention for her migraines. The report of a December 1993 VA examination diagnosed the Veteran with a history of migraine headaches and post spinal/bacterial meningitis with no residuals. In addition to the VA examination, the Veteran submitted private treatment records indicating that she continuously saw a general practitioner and a neurologist for her migraines since 1995. In the Veteran’s hearing testimony, she contended that she began receiving medical treatment for her migraines starting from 1991. As the private treatment records only began from 1995, the Veteran attempted to obtain the records starting in 1991. However, the treatment facilities converted to an electronic filing system in 1994 and all records before then were destroyed and are now unobtainable. In addition to the private medical treatment records and the VA General examination, both the Veteran’s primary care physician and neurologist submitted Disability Benefits Questionnaires (DBQ). Both explained that the Veteran has recurrent migraines, with the primary care physician specifically opining that after looking at the Veteran’s medical history it appears that the migraines began during her time in service. The same primary care physician initially submitted a FMLA worksheet in August 2013 where she opined that the Veteran’s migraines were due to a previous brain surgery. However, in April 2017, she retracted her statement since she did not review the Veteran’s entire medical history the first time. In her retraction, the physician opined that it is as least as likely as not that the Veteran’s migraines are etiologically related to her time in service. The physician claims that the excessive noise aggravated the condition beyond its normal progression. The record in this case is clear as to whether the Veteran has migraines. The December 1993 VA examination reflects a diagnosis of migraines and that there are no residuals of bacterial meningitis. This is consistent with post-service medical treatment records, DBQs, and a private medical opinion reflecting a continued diagnosis of migraines with symptoms of prostrating pain, sensitivity to light and noise, and nausea. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran has consistently reported that she experienced headaches in and since service. This lay evidence is corroborated by the STRs where there is a record that the Veteran sought treatment for a headache and that she had a history of headaches during boot camp. Additionally, the Veteran states in her hearing testimony that she sought treatment for her migraines as soon as she was medically discharged from service. While there are no medical records documenting her treatment during this time, the Veteran explained that the records between 1991 through 1994 were unavailable since the facilities switched to electronic filing in 1994. The Board finds the Veteran to be competent to report that she experienced migraines and that she sought treatment for it. She is found credible because only about two years after separation a VA examination diagnosed her with a history of migraines. The short period between separation and the VA examination helps corroborate her contention that she received treatment for her migraines soon after separation. Thus, the second element of service connection, the existence of an in-service event, illness, or injury, is satisfied. Concerning whether the Veteran’s current disability is caused by, a result of, or otherwise etiologically related to service, the Veteran’s private physician opined linking the Veteran’s current diagnosis to her time in service. Specifically, the physician noted that after reviewing all the Veteran’s medical history, the Veteran’s migraines were caused by the loud noise exposure from the ship’s engine room. After evaluating the probative value of the evidence both for and against the claim, the Board is ultimately unable to assign greater probative value to either set of evidence. The Board highlights that even though there is one instance of a headache in service, no medical records between 1991 and 1992 to satisfy the one-year presumption, no VA examination specific for migraines, and prior inconsistent statements from the Veteran’s private physician, there are still medical documents corroborating the Veteran’s contention about her migraines and her account of why medical treatment records between 1991 and 1992 could not be provided is deemed credible. Additionally, the Veteran has consistently reported ongoing headaches since active service and has received ongoing treatment for her migraines. In light of evidence both for and against the claim, the evidence in this case is at least in equipoise. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for migraines is warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Imam, Associate Counsel