Citation Nr: 21071849 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-52 096 DATE: December 1, 2021 ORDER Service connection for migraine headaches is granted. FINDING OF FACT The Veteran's currently diagnosed migraine headaches are etiologically related to her active military service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to September 2004. In June 2021, the Veteran testified at a Virtual Board Hearing before the undersigned Veterans Law Judge. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including organic disease of the nervous system (migraine headaches) to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for migraine headaches Service treatment records show the Veteran was treated for complaints of headache in March 2002, June 2002, and February 2003. Post-service VA and private treatment records show the Veteran has been diagnosed with and treated for migraine headaches, which he has reported began during active military service, including after exposure to fire pits in Iraq from February 2003-February 2004. C. J. also submitted a lay statement in April 2021, in which he reported that he has known the Veteran for several years, and she started having headaches during active military service, which have continued until this day. See April 2021 statement from C. J. In a November 2017 statement, a private physician, after reviewing the Veteran's medical records, opined that, as the Veteran's correct diagnosis for the headaches she experienced in service were migraines, and there is no evidence of complaints or treatment for headaches prior to military service, her current migraine headaches developed as a result of her military service duties and experiences. See November 2017 statement from C. R., M.D. In an April 2021 statement, another private physician, after reviewing the Veteran's service medical records and post-service medical records, and the April 2021 lay statement from C. J., noted above, opined that the Veteran's current migraine headaches are at least as likely as not a progression of the headaches that started during active military service. See April 2021 statement from M. G., MD. The medical evidence documents current migraine headaches. The service treatment records document treatment in service for headaches. The Board also notes that the Veteran has reported during VA and private treatment, and during VA examination, that she had headaches during active military service, and that she has had recurring migraine headaches since that time. These statements provide competent and credible evidence of migraine headaches during active duty and a continuity of symptoms since. They are also buttressed by the opinions of her private physicians, C. R., MD and M. G., MD. There is evidence against the claim, in that March 2010, February 2017, and November 2017 VA examiners opined that the currently diagnosed migraine headaches were less likely than not incurred in or caused by the claimed in-service injury, event or illness. However, the Board finds the evidence is in at least equipoise. Resolving reasonable doubt in the Veteran's favor, service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.