Citation Nr: 20004263 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 08-33 987A DATE: January 17, 2020 ORDER Entitlement to service connection for a chronic headache disorder, to include migraines, is granted. Subject to the laws and regulations governing monetary awards, a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 15, 2014 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, her chronic headache disorder is at least as likely as not related to her active service. 2. Resolving reasonable doubt in the Veteran’s favor, her service-connected disabilities precluded her from obtaining and retaining substantially gainful employment prior to September 15, 2014. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, her chronic headache disorder is at least as likely as not related to her active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU prior to September 15, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1980 to November 1986. This matter is on appeal from a July 2009 Department of Veterans Affairs (VA) rating decision. In that decision, a regional office (RO) denied the Veteran service connection for migraine headaches and a TDIU. In September 2012, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the file. In June 2013, the Board remanded the aforementioned issues for further development. A TDIU was granted effective September 15, 2014, in an October 2014 rating decision. However, this issue remains on appeal for the period prior to this date. The Board remanded the aforementioned issues for additional development again in July 2015, November 2017, and December 2018. The RO is now in compliance with the Board’s directives on remand. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a chronic headache disorder, to include migraines The Veteran contends that she has a chronic headache disorder due to service. The Board finds that the Veteran has a current diagnosis of migraines that is related to headaches she experienced during her active service. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. § 3.303. Hence, service connection for this disability is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a disorder 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. Service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes migraine headaches, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, VA treatment records show that the Veteran has a current diagnosis of migraine headaches, which she has had throughout the entire appeal period. Thus, the current disability prong of this claim for service connection has been met. Service treatment records (STRs), dated in September 1985, show that the Veteran complained of headaches for about three weeks and that the headaches were manifested by nausea and vomiting. She stated that she did not have any recent head injuries. She also reported that her job with a computer required a lot of eye movement and that her headaches usually began about two to three hours after beginning work with the computer. She underwent an eye consultation and examination and was diagnosed with headaches with near work. She was prescribed reading glasses for near work. Throughout the Veteran’s post-service treatment records, beginning a few years after leaving service, there are complaints of headaches – lasting for up to two weeks at times, and becoming progressively worse over time. For instance, in October 1993, she complained of daily left-sided headaches and reported that she had a history of intermittent headaches that started in service. On a September 2011 VA examination report for headaches, the examiner diagnosed the Veteran with both migraine headaches and chronic daily headaches. The examiner indicated that the Veteran experienced pulsating or throbbing head pain on both sides of the head. He opined that the Veteran’s headache disorder was not related to service, as there is no evidence of a chronic headache disorder in service or shortly after service. At the September 2012 Board hearing, the Veteran testified that she started having headaches in 1981 and that she was treated again for headaches in approximately 1983 or 1984, in service. See Board hearing transcript at 4-5. She reported that she was seen on and off for her headaches, which persisted throughout service, and continued after service. Id. On a December 2015 VA examination report, the Veteran reported having constant head pain that lasts for approximately two days each time. The examiner opined that the Veteran’s headache disorder is not related to service. As rationale, she noted that there was no primary headache disorder diagnosed in service or within two years of leaving service. She also indicated that the headaches the Veteran experienced in service were related to the need of glasses for near vision and near vision computer work. On May 2018 and December 2018 VA addenda medical opinion reports, the examiners opined that the Veteran’s headache disorder is not related to her military service, as there are no service treatment records indicating a diagnosis of a chronic headache condition, or evidence of treatment for migraine headaches in service. Based on the totality of the evidence of record, the Board finds that, in giving the Veteran the benefit-of-the-doubt, her headache disorder started in service and continued after service. A thorough review of the Veteran’s medical records, including her in-service and post-service treatment records, shows a continuity of complaints and treatment related to her headaches. The Board has also considered the Veteran’s lay statements, including her Board hearing statements, describing her continuous symptoms and treatment. The Veteran’s current diagnosis of a headache disorder, the various documented in-service complaints of headaches, as well as the lay statements and post-service treatment records indicating continuous complaints and treatment for headaches, weigh more heavily toward a finding that her headache disorder is related to her military service. While the Board cannot ignore or disregard the VA examiners’ medical conclusions [see Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA examiners’ opinions are problematic due to a lack of adequate, supporting rationales. The examiners did not consider the Veteran’s own lay statements describing the symptoms, along with medical research on the subject. They merely stated that there is no in-service diagnosis of a headache disability, or continuous complaints and treatment for headaches. A complete review of the Veteran’s record indicates that this analysis is not entirely accurate. As noted above, there are documented in-service and post-service complaints of headaches, suggesting a continuity of symptomatology. As such, the Board finds that the VA examiners’ opinions do not have much probative value and cannot be used to deny the Veteran service connection for her headache disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In resolving all reasonable doubt in the Veteran’s favor, the evidence supports a finding that her headache disorder started in service, and continued after service. She is competent to report what she has experienced through her senses, and the Board has no reason to question the credibility of her reports as to the timeline of the onset of headache symptoms. Thus, service connection is warranted for a chronic headache disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to TDIU prior to September 15, 2014 The Veteran contends that her service-connected disabilities made her unable to obtain and maintain substantially gainful employment prior to September 15, 2014. As previously noted, an October 2014 rating decision granted the Veteran entitlement to a TDIU, effective September 15, 2014. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In a July 2019 supplemental statement of the case, the RO acknowledged that the Veteran met the schedular criteria for a TDIU prior to September 15, 2014. Prior to this date, the record indicates that the Veteran was 40 percent service-connected for a lumbar spine disability; 10 percent service-connected for a left knee disability; 20 percent service-connected for left lower extremity sciatic radiculopathy; and 20 percent service-connected for right lower extremity sciatic radiculopathy, for a combined disability rating that was at least 70 percent. Thus, the threshold requirements for a TDIU were met prior to September 15, 2014. The record indicates that the Veteran has not worked since at least October 1999, according to her Social Security Administration (SSA) records. The record also indicates that her service-connected disabilities prevented her from securing or maintaining any employment since at least the date of the April 2011 VA examination for her service-connected back disability. On the April 2011 VA examination report for her lumbar spine disability, she reported having severe, constant pain which was exacerbated by physical activity. She also reported taking medications such as Morphine, Oxycodone, Tylenol, and Naproxen; being treated with Epidural and steroid injections; and undergoing physical therapy. The examiner concluded that this service-connected disability more likely than not caused a worsening of symptoms that precluded the Veteran from performing activities of daily living and interfered with quality of life. During a September 2014 VA examination for her lumbar spine disability, the Veteran complained of constant pain in the lower back, which radiates to both legs and feet. She reported taking medications such as oxycontin, MS Contin, and a muscle relaxer to ease the pain. The examiner noted that the Veteran required the regular use of a back brace. He indicated that the Veteran’s back disability is disabling for gainful sedentary and physical employment due to medication used to treat symptoms. In a December 2014 letter accompanying the Veteran’s notice of disagreement, her attorney noted that there is no difference between the physical findings noted on the April 2011 and September 2014 VA examinations. He referred to the September 2014 VA examiner’s statement that the Veteran’s back disability was disabling for gainful sedentary and physical employment due to medication used to treat her symptoms and noted that the Veteran essentially took the same medications for her back in 2011 and 2014. The Board has carefully considered statements from the examiners, the Veteran, and the Veteran’s attorney regarding the effects of the Veteran’s disabilities on her employability prior to September 15, 2014. The positive and negative evidence regarding the Veteran’s TDIU claim is in relative equipoise. The ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of her physical and educational capabilities. The Veteran’s March 2009 TDIU application shows that she completed four years of high school but did not attain any tertiary level education. There is nothing to indicate that she obtained any other education or training. At the September 2012 Board hearing, she stated that she previously worked as a security guard until 1999, as her back problems precluded her from satisfying the physical demands of constant movement required by her employment. In addition, the Veteran’s SSA records indicate that she last worked in October 1999, although this determination was made based on both service-connected and nonservice-connected disabilities. Further, as the record indicates, and as the Veteran and her attorney stated, the Veteran was essentially taking the same medications for her back disability at the time of both VA examinations. Thus, there is no major difference in opinions between the April 2011 and September 2014 VA examiners. As the September 2015 VA examiner determined that the Veteran’s medication for her back disability impacted her ability to obtain and maintain gainful employment, the Board concludes that this would have also been the case at the time of the April 2011 VA examination. As such, the totality of the evidence supports a finding that the Veteran’s service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment prior to September 15, 2014, when her educational and work background are taken into consideration. Accordingly, the claim for a TDIU prior to September 15, 2014 is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.