Citation Nr: 20076586 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 16-40 275 DATE: December 2, 2020 ORDER Service connection for migraine headaches is granted. REMANDED Service connection for residuals of a head injury, to include memory loss, is remanded. FINDING OF FACT The Veteran has experienced headaches since a February 1970 head injury during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from July 1969 to January 1972. He also had active service in the U.S. Navy from August 1972 to September 1979 and January 1987 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. In January 2019, the Board denied the claims on appeal. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a January 2020 Joint Motion for Remand (JMR), the matter was remanded back to the Board for further adjudication. Service connection for migraine headaches Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of migraine headaches as evidenced by VA treatment records from November 2016. Migraine headaches, as an organic disease of the nervous system, are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran was diagnosed with posttraumatic headaches following a February 1970 head injury during active service. He reported a history of headaches in additional service records dated through 1992. Post-service records show that he continued to complain of, and seek treatment for, his headaches. VA treatment records from May 2002 also reflect a diagnosis of migraine headaches. As an August 2020 private examiner established that these are the same symptoms that he had experienced since service, continuity of symptomatology has been shown and service connection is warranted. REASONS FOR REMAND Service connection for residuals of a head injury, to include memory loss The Veteran reported some memory problems in various VA treatment records beginning in July 2005. An October 2013 VA examination documented a complaint of mild memory loss without objective evidence on testing. This latter finding is considered impairment under 38 C.F.R. § 4.124A, Diagnostic Code 8045, which addresses traumatic brain injury (TBI) residuals. However, the October 2013 VA examiner stated that there was no diagnosed TBI or residuals thereof, and there is no such diagnosis in the other competent medical evidence of record. An additional examination is necessary to determine whether the Veteran’s memory loss is a residual of his in-service head injury, a symptom of his service-connected anxiety disorder, or if it has another etiology. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his memory loss. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. (Continued on the next page) The examiner is asked to provide a response to the following: Does the Veteran have a traumatic brain injury or any residuals thereof that are at least as likely as not related to his documented head injury during service? In making this determination, the examiner should specifically comment on the etiology of any memory loss, including whether it is due to the head injury in service, a symptom of the Veteran’s anxiety disorder, or another etiology. Provide a rationale to support the opinion(s). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.