Citation Nr: 21068445 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-47 986 DATE: November 10, 2021 ORDER Entitlement to service connection for headaches is granted. FINDING OF FACT The Veteran's headaches, which were noted at service entrance, were aggravated by his period of active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1972 to August 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for headaches The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's current headache condition preexisted his period of active military service, and if so whether his headaches were aggravated by service. The Veteran's May 1972 entrance examination reveals a notation of frequent or severe headaches. The examiner further explained that the Veteran was treated at a clinic for frequent headaches in January 1972. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id.; see also 38 C.F.R. § 3.306(b). During service, the Veteran was treated repeatedly for headaches. The Veteran was subject to a physical evaluation board proceeding for his headaches in June 1976, documenting the severity and frequency of his headaches in service. Accordingly, the evidence of record shows that there was an increase in the severity of the Veteran's headache condition during service, and the presumption of aggravation attaches. Again, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran was afforded a VA examination in October 2013. At that time, the examiner indicated that the Veteran's headache condition existed prior to service and was less likely than not related to service. An addendum opinion was obtained in November 2013. The examiner noted the Veteran experienced headaches prior to service, and these continued during service. However, the examiner was unable to determine if the Veteran's pre-existing condition was aggravated beyond the normal progression as a result of service. He did not indicate that the condition "clearly and unmistakably" was not aggravated beyond its natural progression, as is required to rebut the presumption of aggravation During the March 2021 Board hearing, the Veteran competently and credibly testified that due to the excessive noise exposure he experienced on the flight line, he experienced severe headaches a few times a week while on active duty. The Board finds these statements are supported by the service treatment records and physical evaluation board proceeding records that indicate he experienced frequent headaches. After a review of the above, the Board does not find clear and unmistakable evidence that there was no increase in severity of the Veteran's headache condition or that the increase in severity was due to the natural progression of the disease. Therefore, the presumption of aggravation has not been rebutted, and service connection for a headache condition based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.