Citation Nr: 20002981 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-26 538 DATE: January 14, 2020 ORDER Entitlement to service connection for migraines (claimed as secondary to spinal stenosis) is granted. FINDING OF FACT The Veteran has experienced headaches continuously since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraines (claimed as secondary to spinal stenosis) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from September 1998 to October 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for migraines (claimed as secondary to spinal stenosis) is granted. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be proven by presumption. Where the claimed condition is a “chronic disease” pursuant to 38 C.F.R. § 3.309 (a), such as migraines (listed as organic diseases of the nervous system), the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) will apply. Service connection may be established under 38 C.F.R. § 3.303 (b) if a chronic disease or injury is shown in service and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to inter-current causes. 38 C.F.R. § 3.303 (b). For a showing of a chronic disorder in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. If a condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, then a showing of continuity of symptomatology after service is required to presume service connection. Id. The Veteran claims that his migraines began in service or are secondary to his service-connected spinal stenosis. See December 2019 Informal Hearing Presentation. The Veteran has a current diagnosis of migraines. See June 2016 VA treatment records. June 2016 VA treatment records also indicated the Veteran was taking medication for his migraines, but it had not been working. The VA doctor noted the Veteran had been taking a different medication in the past, which had previously worked to stop the migraines. The Veteran underwent a VA Examination in May 2016. The Veteran informed the VA Examiner that he experiences headaches, that they began in service, and that they have continued since service. He further indicated he was diagnosed in service and has continuously taken medication for them. The VA examiner opined the migraine headache condition was less likely than not proximately due to or as a result of the Veteran’s service-connected spinal stenosis. The examiner based her rationale on finding no diagnosis of migraine headaches in the Veteran’s VA treatment records. She indicated that migraine headaches are not related to cervical stenosis or herniated disks. She did not however, give an etiology opinion as to whether an event, injury, or illness during service caused the Veteran’s migraines. While the VA examiner gave a thorough rationale for her opinion, she did not address a February 2011 private treatment record revealing the Veteran’s past history of migraines. In addition, the May 2016 VA examiner indicated the Veteran has not been diagnosed with a headache condition and yet she checked the box indicating the Veteran is taking medication for a diagnosed headache condition. Further, the examiner also did not discuss in her rationale a lay statement from the Veteran that his headaches began in service and have continued since service. Therefore, the Board affords low probative weight to the May 2016 VA Examination. The Board finds that, resolving any reasonable doubt in the Veteran’s favor, service connection for migraine headaches is warranted. The Board finds that evidence, lay and medical, demonstrates that the Veteran had headaches in service and has experienced headaches continuously since service. The Veteran has consistently asserted throughout the appeal period that his headaches had their onset during service, and that they have progressed continuously since that time. The Board finds that the Veteran’s lay statements with regard to symptoms in service and since service are credible. The Board recognizes the Veteran is competent to report the occurrence of lay-observable events, such as symptoms, or certain readily-observable disabilities. 38 U.S.C. § 1153(a) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the lack of contemporaneous treatment or medical records after the Veteran left service for the claimed disability. However, the Board finds the Veteran competent to describe his headaches arising during service, the symptoms he experienced, and the fact that they continued after service. The lack of contemporaneous medical evidence after service for such condition is not a bar for warranting service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.) If the Board concludes that the lay evidence presented by a Veteran is credible and ultimately competent, as is the case here, the lack of contemporaneous medical evidence is not an absolute bar to the Veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. Furthermore, the Veteran is competent to state a continuity of symptomatology of headaches, which were later diagnosed as migraine headaches. (Continued on the next page)   As discussed, the Board acknowledges the negative nexus opinion by the May 2016 VA examiner; however, the Board has found this opinion to have no probative value regarding the issue of entitlement to direct service connection. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the claim of entitlement to service connection for migraine headaches must be granted based on a showing of continuity of symptomatology since service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As such, service connection for migraines is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.