Citation Nr: 20005146 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-50 254 DATE: January 22, 2020 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s migraine headache disability had its inception during active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from February 2000 to June 2000 and on active duty from May 2001 to June 2001, March 2002 to March 2004, and November 2009 to March 2011. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to service connection for migraine headaches. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(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,’ the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifest “during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War” or to a degree of 10 percent or more before December 31, 2021. 38 U.S.C. § 1117; see 38 C.F.R. § 3.317(a); 81 Fed. Reg. 71,382-84 (Oct. 17, 2016) (extending the presumptive period for compensation for Gulf War veterans from December 31, 2016 to December 31, 2021). A qualifying chronic disability is as a chronic disability that results from an undiagnosed illness or a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). In addition, service connection for certain chronic diseases, including an organic disease of the nervous system, may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. A July 2013 Addendum Compensation Service Bulletin indicates that migraine headaches should be recognized as an organic disease of the nervous system. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). In this matter, the Veteran asserts entitlement to service connection for migraine headaches, which he claims developed following his deployment to Southwest Asia from 2002 to 2004. See, e.g., the Board hearing transcript dated November 2019. The Veteran’s service treatment records (STRs) dated in December 2003 documented his report of migraine headaches following a 22-month deployment to Southwest Asia. The Veteran was placed on Physical Profile in January 2004 and instructed to follow-up with neurology. A January 2004 Report of Medical History documented his report of frequent headaches after returning from deployment. STRs dated in August 2010 documented the Veteran’s continuing complaints of headaches. A November 2010 Post-Deployment Health Assessment noted that he went on sick call for “bad headaches.” VA treatment records dated in June 2013 documented the Veteran’s report of headaches contemporaneous to allergies. In September 2013, he was noted to have a history of migraines. The Veteran was afforded a VA examination in August 2013 at which time the examiner confirmed a diagnosis of migraine headaches. The Veteran was afforded another VA examination in June 2015. The examiner noted that the Veteran has a current diagnosis of migraine headaches, which he reports began after his return from deployment to Southwest Asia. The examiner indicated that the diagnosed migraine headache disability “was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner explained that “[m]igraine headaches is a diagnosable chronic multi-symptom illness with a partially explained etiology. It is less likely as not that the claimed condition is a disability pattern that is associated with a specific exposure to Southwest Asia environmental hazards, medical literature does not provide evidence to support claim.” At the November 2019 Board hearing, the Veteran presented detailed testimony describing the onset of headaches following his first deployment to Southwest Asia. See the Board hearing transcript, pgs. 2-3. He stated that these headaches have continued to the present day. Id. at pg. 4. To this end, the Board finds the Veteran’s contentions to be both competent and credible. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). If it does, such lay evidence may be sufficient to establish service connection. Id. Critically, as previously discussed above, the Veteran’s STRs document in-service treatment for and diagnosis of migraine headaches. Moreover, the Veteran’s assertions are competent and credible as to continuity of symptomatology. The Board therefore finds that the Veteran’s currently diagnosed headaches cannot reasonably be disassociated from his credible description of headache symptomatology during his military service and on a chronic basis thereafter. The Board has weighed the probative evidence of record, including the June 2015 VA medical opinions, the Veteran’s STRs, as well as his competent and credible assertions concerning continuing headache symptomatology, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.