Citation Nr: 20006377 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-33 753 DATE: January 28, 2020 ORDER The claim for service connection for migraine headaches, to include as due to service-connected disability, is denied. FINDING OF FACT Migraine headaches were not present in service or until years thereafter and are not etiologically related to active service or a service-connected disability. CONCLUSION OF LAW Migraine headaches were not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1996 to March 1997. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2018. A transcript of the hearing is included in the claims file. This case was previously before the Board in June 2018 and September 2019 when it was remanded for further development. The case has now returned to the Board for additional appellate action. In response to the Board’s September 2019 remand instructions, VA obtained a medical opinion addressing the Veteran’s contentions regarding secondary service connection in September 2019. In January 2020 correspondence, the Veteran’s representative contends that the September 2019 VA medical opinion is inadequate as it does not consider the Veteran’s statements regarding the onset of her headaches during service and a continuity of symptoms since that time. The Board finds that the September 2019 medical opinion is adequate as it pertains to the question of whether service connection is warranted on a secondary basis and not as directly due to service. As such, discussion of the Veteran’s contentions regarding the in-service onset of headaches is not pertinent to the requested opinion. Additionally, as discussed below, the Board has determined that the Veteran’s reports of continuous symptoms since service are not credible. Thus, the September 2019 VA medical opinion is adequate with respect to the claim for secondary service connection and additional remand and delay is not necessary. 1. Entitlement to service connection for migraine headaches, to include as due to service-connected disability. The Veteran contends that service connection is warranted for migraine headaches as the condition was incurred due to an injury during basic training. Alternatively, the Veteran contends that her migraine headaches are secondary to service-connected PTSD or medication used to treat residuals of a service-connected left tibia stress fracture. The Board finds that the evidence weighs against a link between the Veteran’s migraines and any injury during service or a service-connected disability. In addition, the Board concludes that the history provided by the Veteran is not credible. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). Service connection is also possible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service event or is caused or aggravated by a service-connected disability. The Board will first address whether service connection is warranted for the claimed headaches as directly due to service. The record establishes the first two elements of service connection: a current disability and in-service injury. VA and private medical records document treatment for chronic headaches since 2012 and migraine headaches were diagnosed upon VA examination in March 2012. An in-service injury is also demonstrated. The Veteran reports that she hit her head after falling during a paragliding exercise in basic training. She testified in April 2018 that she experienced the onset of headaches the next day that have continued since that time. Service records do not document the injury reported by the Veteran, nor do they document any treatment for headaches during active duty aside from a one-time complaint in August 1996 associated with an upper respiratory infection. The Veteran has also stated that her headaches began while she was pregnant during service; again, no complaints of headaches associated with her pregnancy are shown in the service records. However, the January 1997 separation report of medical history does contain a notation from the Veteran that she experiences frequent or severe headaches. The Board will therefore resolve any doubt in favor of the Veteran and finds that an in-service injury is established. Turning to the third element of service connection, a nexus between the claimed disability and in-service injury, the Board notes that service records do not support the claim. As noted above, there are no findings or treatment related to chronic headaches in the service records. The Veteran reported having headaches on the January 1997 report of medical history, but no findings were made pertaining to headaches on the accompanying physical examination. In addition, there are no complaints of headaches documented in association with the reported injury during basic training or during the Veteran’s pregnancy. Thus, service records do not document the onset of chronic headaches during service and do not provide evidence in support of a link between the Veteran’s current migraines and any in-service event. Post-service treatment records also contain evidence weighing against service connection, including an absence of treatment or complaints until years after service. There is no competent medical evidence of migraine headaches until June 2012, 15 after service, when the Veteran reported experiencing headaches to her private physician. The absence of any clinical evidence for years after service is one factor that weighs the evidence against a finding that the Veteran incurred chronic headaches due to an injury during service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Other treatment records dated throughout the claims period also note multiple alternative etiologies for the Veteran’s migraines, to include the chronic use of opiod medication, a cervical spine disability, and poor sleep hygiene associated with sleep apnea. Furthermore, in March 2013, the Veteran’s neurologist noted that the Veteran’s headaches were likely due to medication overuse, including Oxycodone. This medical evidence weighs against service connection on a direct basis and indicates that the Veteran’s migraine headaches are related to nonservice-connected disabilities. The record does not contain any medical opinions in support of the claim and none of the Veteran’s treating physicians have identified a link between in-service events and the Veteran’s migraine headaches. In March 2019, a VA examiner provided a medical opinion against service connection on a direct basis. After reviewing the claims file, the examiner concluded that the Veteran’s reported headaches during service were acute and there was no objective evidence that a chronic headache condition was incurred during active duty. The medical evidence also pointed to a post-service onset for the Veteran’s migraines in 2012. This opinion was rendered following review of the relevant evidence from the claims file and considered the Veteran’s reported history regarding the onset and development of her disability. The Board therefore finds that it is probative evidence weighing against the claim for service connection. The Board has also considered the Veteran’s statements reporting the onset of chronic migraine headaches during active duty that have continued to the present day. Service connection is possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology, however, migraine headaches are not chronic diseases as defined in VA regulations. The Board will therefore consider whether the Veteran’s statements support the claim for service connection under 38 C.F.R. § 3.303(a) and (d). The Board finds that the history provided by the Veteran regarding the onset and continuous nature of her migraine headaches is not credible. This history is inconsistent with the other evidence of record, including statements made by the Veteran identifying numerous other etiologies for her migraines. As noted above, the Veteran currently maintains that her migraine headaches had their onset following an injury in basic training or during an in-service pregnancy. However, review of the service records is entirely negative for any complaints or treatment for migraines during service aside from the Veteran’s comment on the separation report of medical history. There is also no evidence of migraines in the post-service records until 2012, 15 years after the Veteran’s discharge from service. The lack of any medical treatment for years after service is facially inconsistent with the Veteran’s reported history of constant headache pain since 1996. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility). The Veteran has also provided numerous other possible etiologies to account for her migraines, some of which occurred after service. In an October 2012 statement, the Veteran reported that her headaches were related to a nonservice-connected cervical disc condition. Treatment records document the Veteran’s statements relating her headaches to sleep apnea and poor sleep habits. Additionally, in March 2013, during an evaluation with her private neurologist, the Veteran denied any history of head injuries and instead stated that her headaches had been present since childhood. She never reported a fall and head injury during service until April 2018, when the Veteran stated that she fell during a paragliding exercise in basic training. Prior to that date, the Veteran maintained that her headaches began during her pregnancy. Based on the above inconsistencies, the Board finds that the history reported by the Veteran regarding the onset of her migraine headaches is not credible. The Board has also considered the Veteran’s statements that her current disability is related to an in-service injury, but as a lay person, she is not competent to opine as to medical etiology or render medical opinions. The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of migraine headaches, but has determined that this history is not credible. As the competent medical evidence is also against the finding of a nexus between the Veteran’s in-service injury and her current headaches, all the elements necessary for service connection on a direct basis are not established and the claim must be denied. The Board must now determine whether service connection is warranted on a secondary basis for the claimed migraine headaches. The Veteran contends that her chronic headaches are caused or aggravated by anxiety associated with service-connected PTSD or medications used to treat the residuals of a left tibia fracture. With respect to the second contention, the Board notes that the Veteran’s left tibia fracture is rated as noncompensably disabling and the record does not establish any impairment related to the condition. The Veteran’s private physician opined in March 2013 that her headaches were due to the overuse of medications including opioids, but there is no medical evidence that these medications were prescribed to treat the residuals of the service-connected left tibia fracture. Similarly, the record does not contain any competent evidence of a link between the Veteran’s PTSD and her migraine headaches. VA obtained a medical opinion addressing secondary service connection, and in September 2019 a VA examiner concluded that the Veteran’s headaches are not caused or aggravated by her service-connected disabilities. The examiner noted that the left tibia fracture resolved without residuals and the Veteran’s headaches are associated with poor sleep habits (presumably due to nonservice-connected sleep apnea) and the overuse of pain medications. This medical opinion was rendered with review of the Veteran’s claims file, including her statements regarding the nature of her headaches, and is of significant probative value. Finally, the Board has considered the Veteran’s statements regarding the etiology of her migraine headaches on a direct and secondary basis, but as a lay person she is not competent to render a medical opinion. The Board therefore finds that the evidence weighs against service connection on a direct and secondary basis and the claim is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.