Citation Nr: 20048089 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 16-38 537 DATE: July 17, 2020 ORDER Entitlement to service connection for a headache disability, diagnosed as migraine headaches, is granted. FINDING OF FACT The most probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s headache disability, diagnosed as migraine headaches, is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for headache disability, diagnosed as migraine headaches, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1986 to January 1994. This matter comes to the Board of Veterans’ Appeals (Board) on an appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, the Agency of Original Jurisdiction (AOJ). In the rating decision, the AOJ denied service connection for migraine or prostrating headaches. The Veteran appealed this determination and the present appeal ensued. This issue was previously before the Board in December 2018 when it was remanded for further development. The Board's remand directives and the subsequent actions by the AOJ will be discussed below. This issue has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for headache disorder to include migraines Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for a disability which began in military service or was caused by some event(s) in service; or when a disability that existed prior to service became permanently worse as a result of service 38 C.F.R. § 3.303. Service connection may also 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. 38 C.F.R. § 3.303 (d) (2019). Additionally, service connection may be granted for specific diseases or conditions which are, by law, presumed to have been incurred during service if manifested to a compensable degree within a specified period of time, generally, one year. 38 C.F.R. § § 3.307, 3.309. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The December 2014 VA examiner concluded that the Veteran has been diagnosed with migraine headaches, including migraine variants, pursuant to his VA medical records which indicate a diagnosis of “migraines” in 2011. More specifically, VA treatment records from Central Texas VA Medical Center (VAMC) show that in June 2011, the Veteran reported a history of headaches that had begun 10 years prior, and he was assessed with migraine headaches. Therefore, the first element required to establish service connection, a current diagnosis, has been met. As to the second element required to establish service connection, an in-service incurrence, event, or injury, the Veteran’s service treatment records indicate that he had several episodes of allergies/sinus conditions that encompassed headaches while in service. The Veteran’s service treatment records include notations of headache and dizziness (October 1988); headache and sinus problems (February 1989); headache, sinus and allergy problems (January 1989); headache, congestion (June 1990); headache (January 1991); headache and cough (March 1991); throbbing headaches and vertigo (March 1993); headache (May 1993); headache lasting 1-2 months, with sinus drainage, and allergic rhinitis (September 1993). This evidence unambiguously shows episodic reports of experiencing headaches, and thus, the second element has been met. Concerning the final element required to establish service connection, competent evidence of a nexus between the current disability and the in-service event, injury, or illness, the Board must further examine the evidence of record. The Veteran was afforded a VA examination in December 2014, and after a review of the complete record, the examiner opined that the Veteran’s migraines were less likely than not (less than 50 percent probability) incurred in or caused by the headaches diagnosed and treated in service. The examiner reasoned that the Veteran's service records are negative for diagnosis of migraine condition. The examiner noted that the Veteran’s service treatment records indicate complaints of headache symptoms, but indicate diagnoses of upper respiratory infection, sinusitis, or dehydration. As noted by the Board in the prior remand, the provided opinion was incongruent with the evidence of record that showed headaches during service and within the presumptive period after service. In addition, the Veteran claimed that the headaches may be related to his sinusitis or allergic rhinitis, and the December 2014 examiner did not consider this assertion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board found that another VA examination was warranted to determine the nature and etiology of the Veteran’s headaches. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The Veteran was afforded a VA examination in May 2019. The examiner noted that while there are no medical records showing diagnosis or treatment of migraines while the Veteran was still in service, the Veteran has asserted that his current migraines are related to allergic rhinitis and sinusitis. The examiner stated that after conducting a physical examination and reviewing medical records dated 02/3/1989; 06/14/1990; 09/8/1993; 03/24/1994; 09/16/1995; 03/15/1996; 07/19/2002; and 01/23/2014; it is at least as likely as not the veteran's condition is related to military service. The examiner’s rationale was that service treatment records showed that the Veteran was diagnosed with allergies and sinusitis and treated while on active duty. The examiner opined that the Veteran’s current diagnosis of migraine headaches is at least as likely as not a progression of the same condition (allergic rhinitis and sinusitis) diagnosed while the Veteran was in military service. While the examiner’s opinions appear to reflect that the Veteran’s headaches were initially a symptom of his in-service sinus-related issues, such progressed to meet the criteria for a post-service diagnosis of migraine headaches. Furthermore, and critically, as the impetus of the Veteran’s migraine disability was the Veteran’s in-service sinus-related issues, the May 2019 VA examiner’s opinion is fully favorable to the Veteran’s appeal. The Board finds this detailed opinion highly probative, as it cites evidence within the Veteran’s file and is congruent with the remainder of the evidence of record, to include the Veteran’s competent and credible lay statements. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). The Board further notes that while the same examiner also provided opinions against the claim, the explanation for this is not readily apparent from the file and, in any event, the Board does not find the negative opinions to be any more persuasive than the examiner’s opinion in support of the claim. Accordingly, the Board finds that the final element required to establish service connection for migraine headaches, a nexus between an in-service event, illness, or injury, has been demonstrated, and that service connection for this disability is therefore warranted. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.