Citation Nr: 21068298 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-51 668 DATE: November 9, 2021 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran's migraine headaches are related to active service. CONCLUSION OF LAW The criteria for service connection for a migraine headaches disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2002 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes the Veteran originally appealed denials of entitlement to service connection for migraines, insomnia, and unspecified depressive disorder. However, a February 2019 rating decision granted the unspecified depressive disorder disability and indicated the insomnia was a part of the unspecified depressive disorder, as they are both psychiatric conditions. As such, the only issue before the Board is entitlement to service connection for migraines. The Veteran claims her migraines are related to in-service headache complaints. For the reasons discussed below, the Board finds the evidence is in relative equipoise and service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) reflect a June 2004 treatment record for headaches. She was prescribed Tylenol. In the March 2005 post-deployment health assessment (PDHA) the Veteran denied headaches. Post service, a July 2018 examination report diagnosed the Veteran with migraines. There was no etiology opinion associated with the report. A February 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited her complaints. She was diagnosed with migraines. The examiner opined that it is less likely than not that the headaches are related to the headaches noted during military service. It was reasoned, based on review of the available medical records, medical literature and clinical experience, STR shows the Veteran reported history of headaches; however, there is no objective evidence indicating the current headaches have been a chronic ongoing treated condition during or soon after service. It was noted she was initially diagnosed with headaches back in 2017, and thus a nexus could not be established. In July 2021 the Veteran submitted a private opinion from Dr. A.A. The doctor opined the Veteran's headache related condition has at least a 70 percent or greater probability to have been incurred during her military service. It was reasoned the Veteran had in-service complaints of panic attacks and migraines, which are consistent with the symptoms she has today. It was noted the in-service complaints were corroborated by the statement from R.J., an individual who served with the Veteran. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence is at least in equipoise as to whether the Veteran's migraines are related to service. In this case the record reflects a negative February 2019 VA opinion. The Veteran provided an adequate positive July 2021 etiology opinion finding the in-service headaches are related to the current headaches. The Board finds that the evidence has reached the point of relative equipoise. The July 2021 etiology opinion presents an adequate rationale that is at least as persuasive as the VA medical opinion to the contrary. The standard of certainty under VA law is not absolute certainty. The standard is a probability of at least 50 percent. Accordingly, the Board finds that the evidence in favor of the claim is in relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the Veteran, the Board concludes that service connection for a migraine or headache disability is warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.