Citation Nr: 20006802 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-20 461 DATE: January 28, 2020 ORDER Service connection for chronic migraines, including as secondary to the service-connected tinnitus, is denied. Service connection for vertigo, including as secondary to the service-connected tinnitus, is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with chronic migraine disorder. 2. There was no head injury, chronic migraine disease, or other relevant event during service. 3. The current chronic migraine disorder is not related to service. 4. The current chronic migraine disorder was not caused by or worsened beyond its natural progression by the service-connected tinnitus. 5. The Veteran is currently diagnosed with vertigo. 6. There was no head injury, chronic vertigo, or other relevant event during service. 7. The current vertigo was not caused or worsened beyond its natural progression by the service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic migraines, including as secondary to the service-connected tinnitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for vertigo, including as secondary to the service-connected tinnitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from December 1972 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In December 2019, the Veteran testified at a Board Videoconference hearing in Oakland, California, before the undersigned Veterans Law Judge who was seated in Washington, DC. A transcript of the hearing is of record. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duties to notify and assist have been met in this case. Neither the Veteran nor the representative raised any issues with the duty to notify or duty to assist. Service Connection Legal Authority Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service connection for chronic migraines, including as secondary to the service-connected tinnitus 2. Service connection for vertigo, including as secondary to the service-connected tinnitus The Veteran generally contends that chronic migraines and vertigo are either the result of active service or are the result of the service-connected tinnitus. At the outset, the Board finds the Veteran is currently diagnosed with chronic migraines and vertigo. See December 2019 private treatment record. After reviewing all the lay and medical evidence of record, the Board finds that there was no in-service head or other relevant injury, or chronic migraine or vertigo disease, or other relevant event during service. Service treatment records do not reflect any report of injury, symptoms, or diagnosis of chronic migraines or unexplained vertigo. While an August 1973 service treatment record reflects treatment for subjective symptoms that included a “headache, dizziness and a general ill feeling,” this same record diagnosed these symptoms as “early flu” and not as chronic migraines or vertigo. At a September 1976 service separation examination, the Veteran did not mention symptoms of chronic headaches or vertigo, and specifically denied symptoms of dizziness, fainting spells, or motion sickness. Post-service VA and private treatment records similarly do not show findings of chronic migraines and vertigo until 2017. See September 2017 private treatment record. The weight of the evidence shows that the current chronic migraines and vertigo did not have their onset during service and are not otherwise etiologically related to service. The weight of the evidence shows that chronic migraines and vertigo had their onset after active service, with no diagnosis of chronic migraines and vertigo until September 2017. Regarding the theory of secondary service connection, the weight of the lay and medical evidence shows that the current chronic migraines and vertigo were not caused by or worsened beyond their normal progression by the service-connected tinnitus. In November 2017, the Veteran underwent a VA examination to help determine whether the chronic migraine disorder is etiologically related to the service-connected tinnitus, and to help determine if the vertigo disorder is etiologically related to the service-connected tinnitus. The November 2017 VA examiner opined that the chronic migraines and vertigo are less likely than not proximately due to the or the result of the service-connected tinnitus. A September 2017 private examination with Dr. M.R. purported to opine that the chronic migraine and vertigo are more likely than not due to the service-connected tinnitus. A few months later, in April 2018, Dr. M.R. again purported to opine that the chronic migraine and vertigo are more likely than not due to tinnitus from involvement in the U.S. Air Force when the Veteran was exposed to jet engine noise. In June 2018 Dr. M.R. provided a statement practically identical to the April 2018 statement. Again in December 2019 Dr. M.R. gave a statement that is identical to the April 2018 and June 2018 statements, with the additional note that it is difficult to say with one hundred percent certainty whether chronic migraine and vertigo are caused by tinnitus. All four private medical opinions by Dr. M.R. did not address the Veteran’s specific medical history in providing the opinion that the current chronic migraine and vertigo were caused and/or worsened beyond their normal progression by the service-connected tinnitus disability, and did not provide a rationale. Because Dr. M.R.’s medical opinions are not premised on the Veteran’s specific medical history, and provide no rationale, the Board finds that they are of no probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring medical examiners to provide a “reasoned medical explanation connecting” observations and conclusions); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). In contrast the Board finds that the November 2017 VA medical opinion – that the chronic migraines and vertigo are less likely than not proximately due to or the result of the Veteran’s service-connected tinnitus – was premised on the Veteran’s specific case, including medical history, and is based on accurate factual assumptions consistent with the evidence, as found by the Board. (Continued on the next page)   Based on the foregoing, the Board finds that weight of the evidence demonstrates the current chronic migraine disorder and current vertigo disorder were not caused or worsened beyond a normal progression by the service-connected tinnitus. For these reasons, service connection for chronic migraine and vertigo, including as secondary to the service-connected diabetes, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Wasung, 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.