Citation Nr: 21065608 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-05 088 DATE: October 26, 2021 ORDER Entitlement to service connection for migraine headaches, to include as secondary to an acquired psychiatric disorder and/or service-connected right inguinal hernia, right inguinal hernia residuals, and postoperative hydrocele associated with right inguinal hernia, is denied. FINDING OF FACT The Veteran's migraine headaches were not shown in service or for many years thereafter and are otherwise unrelated to his active service, to include as secondary to an acquired psychiatric disorder and/or service-connected right inguinal hernia, right inguinal hernia residuals, and postoperative hydrocele associated with right inguinal hernia. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches, to include as secondary to an acquired psychiatric disorder and/or service-connected right inguinal hernia, right inguinal hernia residuals, and postoperative hydrocele associated with right inguinal hernia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from December 1975 to September 1976. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of a February 2019 Board remand which directed the Regional Office (RO) to undertake additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. 38 C.F.R. § 3.303 (d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for migraine headaches, to include as secondary to an acquired psychiatric disorder and/or service-connected right inguinal hernia, right inguinal hernia residuals, and postoperative hydrocele associated with right inguinal hernia The Veteran is seeking service connection for migraine headaches which he attributes to his non-service connected acquired psychiatric disorder and/or to another service-connected disability including, right inguinal hernia, right inguinal hernia residuals, and postoperative hydrocele associated with right inguinal hernia. As a preliminary matter, the Board notes that the Veteran is not service connected for an acquired psychiatric disorder, as such, secondary service connection for a migraine headache disorder based upon an acquired psychiatric disorder cannot be considered. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran's migraine headache disorder began during service or is at least as likely as not related to an in-service injury, event, disease, or another service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of a migraine headache disorder, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of migraine headaches began during service or is otherwise related to an in-service injury, event, disease, or another service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.310. The Veteran's service treatment records are silent for any signs or symptoms of migraines or a related disorder. Additionally, the Veteran himself, has not claimed that his migraines manifested during his time in active service. The Veteran's post service treatment records first show treatment for a headache in January 2008. A medical treatment note from January 2008 indicates that the Veteran reported a frontal headache with muscle weakness, the Veteran was given IV fluids and promethazine and his headache resolved. The next instance of documented headache pain is in January 2009, however, the Veteran also presented with a cough and greenish phlegm the treating physician noted that these are chronic cold symptoms. Aside from the prior two medical treatment notes, there are no indications that the Veteran has sought or received treatment for a migraine disorder until a 2018 diagnosis by a private physician. Given the lack of treatment for, or diagnoses of the claimed disorders, continuity of symptoms is not established. Moreover, the Veteran has not alleged continuous symptoms of his claimed migraine disorder since active service. Additionally, the large gap in treatment for the asserted conditions weighs against the Veteran's claims. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Next, service connection may also be granted when the evidence establishes a medical nexus between active service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed migraine disorder to active service, despite his contentions to the contrary. A VA examination was afforded to the Veteran in April 2021 to evaluate the nature and etiology of his claimed migraine disorder. At the examination, the Veteran reported that his headaches began long after his military service and associated medical complications from his hernia. The Veteran further indicated that he believes his headaches are associated with his non-service connected acquired psychiatric disorder and/or hernia or its residuals. The Veteran stated that he experiences throbbing pain, dizziness, weakness, blurred vision, and sensitivity to sounds and light when experiencing a headache. He did not report using any medication to treat his headaches, and that the duration is less than a day. The examiner opined that the Veteran's migraines were less likely than not related to his active service or any service-connected disorder. The examiner noted that headaches are commonly associated with mental health disorders, of which the Veteran is not currently service connected for any. However, the examiner further noted that there was no medical evidence either generally, or specific to the Veteran that linked his migraines with his hernia, its residuals, or postoperative hydrocele. The examiner noted the opinion from the Veteran's private physician but pointed out that the few documented occurrences of headaches in the Veteran's medical records did not coincide with any symptoms that could be considered to be related to the Veteran's hernia, its residuals, or postoperative hydrocele. Next, the Board notes the February 2018 opinion authored by the Veteran's private physician who opined to a positive nexus between the Veteran's migraines and other disorders. The Veteran's physician at this time diagnosed the Veteran with a migraine headache disorder. The physician noted the Veteran's statements relating his migraines to his acquired psychiatric disorder and his hernia and hernia residual disorders. The Veteran also noted that he experienced headaches 2 to 3 times each week that he believed was due to stress from his anxiety. The physician opined that the Veteran's acquired psychiatric disorder more likely than not caused and aggravated his headaches, however, this is not a disorder for which the Veteran is presently service connected. Turning to the Veteran's hernia, its residuals, or postoperative hydrocele, the physician noted that the Veteran complained of worse headache pain when also experiencing pain related to his hernia. The physician also opined that the Veteran's hernia, its residuals, or postoperative hydrocele were more likely than not the cause of or an aggravating factor for his headaches. The physician did not provide any supportive rationale for their conclusion regarding the relationship between the Veteran's headaches, and hernia, its residuals, or postoperative hydrocele and instead relied upon the Veteran's statements solely. There was no medical basis on which the physician based this portion of their opinion on and thus the Board finds that it carries less probative weight than the opinion provided by the April 2021 VA examiner. After consideration of the evidence of record, the Board concludes that service connection for a migraine headache disorder is not warranted. The Board notes that a positive association was suggested by the VA examiner and his private physician between his migraine headache disorder and acquired psychiatric disorder, however, as the Veteran is not service connected for an acquired psychiatric disorder, secondary service connection cannot be granted on this basis. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his migraine headache disorder on appeal to his active service. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his migraine headache disorder. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's contentions linking his disorder to service, including as due to another service-connected disorder, are found to lack competency. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a migraine headache disorder, and there is no doubt to be otherwise resolved. The Veteran's appeal is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor