Citation Nr: 20005572 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-13 574 DATE: January 23, 2020 ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for depression, secondary to migraine headaches, is denied. FINDINGS OF FACT 1. The weight of the probative evidence of record does not show that the Veteran’s migraine headaches are related to his active duty service. 2. The weight of the probative evidence of record does not show the Veteran’s depression is related to his active duty service or that it has been caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. 2. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1981 to September 1981. In September 2018, the claims were brought before the Board and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 1. Entitlement to Service Connection: Migraine Headaches The Veteran contends that his migraine headaches are related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with migraine headaches. Further, the Veteran’s service records show the Veteran complained of headaches in August 1981. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In January 2015, a VA medical opinion was obtained in which the physician examiner wrote that the Veteran’s headaches were related to his active duty service. As rationale, he wrote that the medical records showed he was discharged from the military because of his migraine headaches. However, in March 2105, an addendum opinion was provided. The Regional Office requested clarification from the physician due to the Veteran’s military records showing he was discharged due to marginal and nonproductive reasons, not medical, and for the physician to re-review the records. The physician then provided an updated opinion opining that the Veteran’s service records showed his headaches resolved the next day and were not labeled as being migraine headaches. Therefore, it was not likely that the 2014 diagnosis of migraines was caused by the in-service illness. The Board notes that the Veteran submitted a private opinion in March 2014, in which his physician opined that the Veteran’s documented in-service headaches marked the onset or contributed to his current headache condition. No rationale was provided for the opinion. The Veteran provided another private opinion in October 2017. The physician provided the Veteran came to the office for his longstanding history of migraine headaches. The physician further stated the Veteran has no family history of migraines and given his debilitating headaches coincide with his service in the military, it is most likely the onset is contributed to his military service. The Board puts low probative weight to the private opinions provided. First, the March 2014 physician did not provide a rationale for the opinion rendered. Secondly, although the October 2017 physician states his migraines coincide with his headaches in service, there is no medical evidence of record that shows his headaches continued after service. In fact, the Veteran’s headache in-service was noted as being related to cold symptoms and was not diagnosed as migraines. The Board also notes that medical evidence of record shows the Veteran suffered a head injury in February 1993 after a ceiling fell on his head. The Veteran’s headaches were noted as being related to this accident. Further, the Board notes that the Veteran has provided no medical evidence showing treatment or a diagnosis for migraines after service, and he was not seen for headaches until February 1993, over 11 years after service, which as noted above, were related to a head injury. Moreover, the Board also notes that the Veteran did not have a migraine diagnosis until 2014, over 30 years after service. Therefore, the Board finds the March 2015 addendum opinion to be of significant probative value in determining that the Veteran’s migraine condition is not related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physicians’ opinions were based on review of the Veteran’s lay contentions, his reported medical history, and review of the medical evidence of record. The Board acknowledges the Veteran’s assertions that he currently suffers from a migraine condition that is related to service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether a psychiatric disability is related to his service, to include service during a period of war, requires medical expertise that the Veteran has not demonstrated since migraine disabilities can have many causes. See Jandreau, 492 F.3d at 1376. Furthermore, the Veteran’s allegations that he has experienced a chronic migraine headache disorder from the time of service to the present are not credible. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the Board as fact finder). As mentioned above, the evidence of record shows the Veteran did not first complain of headaches after service until February 1993, over 11 years after separation, and it was due to a head injury following a ceiling accident. Moreover, the Board notes that the Veteran’s statements are inconsistent with the evidence of record, as he reported to several of his physicians, he was discharged due to his migraines, which the Veteran’s personnel records clearly show is not the case. The Veteran’s DD-214 discharge form show the Veteran was discharged due to marginal and nonproductive performance. His records further elaborate that the Veteran’s discharge was specifically due to disciplinary problems, which included negative attitude, behavior, and disrupting his class. Lastly, the Veteran’s in-service August 1981 complaint of headaches was noted as being a symptom of a cold and resolving shortly after, and it was not indicated to be a type of migraine. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value, and statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cf. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (While VA cannot ignore a veteran’s testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). Therefore, the Board finds that the Veteran’s assertions of a continuity of symptomatology are not credible and hold no probative weight to support the claim. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim, and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to Service Connection: Depression The Veteran contends that his depression is related to his active duty service, specifically, his migraine headaches. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with major depressive disorder. Thus, the issue turns upon whether there is evidence of an in-service event or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In January 2015, a VA examination diagnosed the Veteran with depressive disorder and concluded that the Veteran’s depression was at least as likely as not proximately due to or result of migraine headaches. The physician rationalized that the Veteran has been evaluated by two different physicians that have all found his depression to be caused by a medical condition, his migraines. While the Veteran’s depression has been found to be related to his migraines, to include multiple notations in his medical records, as provided above, the Board has found that the Veteran’s migraine headaches are not related to his service. The Veteran is not service connected for any other disabilities. Because the Veteran has not been awarded service connection for migraine headaches or any other disability, secondary service connection for depression cannot be granted as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran’s only contention has been that his depression is secondary to migraine headaches, but the Board has also considered whether service connection for depression can be granted on a direct basis. The Veteran has not, however, provided any additional evidence that his depression is related to his military service, or anything other than his non-service-connected migraine headaches. There is no evidence or contentions in the record relating the Veteran’s depression to active duty service in any way, and no indication that any psychiatric symptoms began in or immediately after his active duty service. While a medical opinion was not obtained regarding whether the Veteran’s depressive disorder was directly related to his service, the Board does not find that this renders the January 2015 VA examination inadequate, as VA’s duty to assist had not been triggered with regard to developing the claim as a claim for direct service connection. There is no evidence of any event, injury or disease related to depression or any other psychiatric disorder in service, and no indication that the Veteran’s depression symptoms are associated with his service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In sum, the Board finds that the weight of the evidence is against finding that the Veteran’s depression is related to any event or injury in service, and he has no service-connected disabilities for which secondary service connection could be granted. The Board has again considered the benefit of the doubt doctrine, but the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. 49. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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 it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.