Citation Nr: 21003760 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-20 678 DATE: January 22, 2021 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s migraine headaches are causally related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.04, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to May 2009. Service in Southwest Asia is indicated by the record. The Veteran is the recipient of the Combat Infantry Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for migraine headaches. The Veteran filed a notice of disagreement (NOD) in November 2015 and a statement of the case (SOC) was issued in February 2017. He perfected a timely appeal in April 2017. In April 2016, the Veteran testified before a Decision Review Officer. In October 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the Veteran’s VA claims file. 1. Entitlement to service connection for migraine headaches. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,’ the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserts entitlement to service connection for migraine headaches, which he claims developed during his active duty service. See, e.g., the Board hearing transcript dated October 2019. A July 2013 Addendum Compensation Service Bulletin indicates that migraine headaches should be recognized as an organic disease of the nervous system. Organic disease of the nervous system are chronic diseases. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). With respect to current diagnosis, a December 2014 VA examination documented a continuing diagnosis of migraine headaches. As to in-service incurrence, the Veteran’s service treatment records (STRs) show that was treated for complaints of headaches in August 2006 and September 2006. The Veteran’s November 2007 Post-Deployment health assessment noted that he experienced headaches during his deployment to Southwest Asia. Moreover, the Veteran is competent to report observable symptoms such as headache pain. See Jandreau. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). The Board further notes that the Veteran served as an infantryman in Iraq and is the recipient of the Combat Infantry Badge (CIB). As such, 38 U.S.C. § 1154(b) is applicable. His statements concerning headache symptomatology are competent, credible, and consistent with the circumstances of his combat service; therefore, in-service headaches are presumed. 38 U.S.C. § 1154(b); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Accordingly, by applying 38 U.S.C. § 1154(b), the Board concludes that the Veteran suffered from headaches during combat operations. The remaining issue is whether the currently diagnosed migraine headaches are related to the in-service injury and disease. VA treatment records dated in June 2009 documented the Veteran’s report of headaches. Treatment records dated in July 2009 indicated that the Veteran has experienced long-standing headaches since February 2005. The Veteran was afforded a VA examination in December 2014 at which time the examiner indicated that the Veteran’s diagnosed migraine headaches are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained, “[a]lthough STRs indicate a one-time complaint of headaches in September 2006, there is no further evidence in the STRs to indicate that a chronic condition developed. Nor is there evidence in post-service medical records to indicate continuing symptoms.” In support of his claim, the Veteran submitted a November 2015 statement detailing the in-service onset of his headache symptomatology, which he argues had continued to the present day. In support of his contentions, he submitted an April 2016 statement from his stepfather, Mr. M.S., who reported that the Veteran lived with the Veteran’s mother and him for three years and experienced headaches throughout that period of time. In an April 2016 statement, the Veteran’s brother reported that he witnessed the Veteran’s headaches first-hand from 2006 to 2009, and from 2012 onward. The Veteran’s father, Mr. G.R., also submitted an April 2016 statement describing the Veteran’s headache symptomatology dating from his military service. In an April 2016 statement, Mr. B.T. stated that he has been friends with the Veteran for two years and is aware of the Veteran’s report of on-going headaches. Notably, Mr. D.W. submitted an October 2019 statement in which he explained that he was deployed with the Veteran and was aware of the Veteran’s in-service complaints of headache symptoms. At the October 2019 Board hearing, the Veteran presented detailed testimony describing the onset of headaches during his deployment to Iraq in 2005. See the Board hearing transcript, pgs. 2-3. He stated that these headaches have continued to the present day. Id. at pgs. 3-5. To this end, the Board finds the Veteran’s contentions to be both competent and credible. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). If it does, such lay evidence may be sufficient to establish service connection. Id. As previously discussed above, the Veteran’s assertions as to his headache symptoms in service and thereafter are competent and credible as to continuity of symptomatology. Moreover, his assertions are corroborated by multiple lay statements from a fellow servicemember, friends, and family, who have witnessed the Veteran’s headache symptomatology dating from his military service. Accordingly, the Board finds that the Veteran’s currently diagnosed headaches cannot reasonably be disassociated from his credible description of headache symptomatology during his military service and on a chronic basis thereafter. Given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Board has weighed the probative evidence of record, including the December 2014 VA medical opinion as well as the Veteran’s competent and credible assertions concerning continuing headache symptomatology, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.