Citation Nr: 21073394 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-05 677 DATE: December 8, 2021 ORDER Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The Veteran was found to have a normal neurological system on examination for entry into military service; no headache disorder was noted. 2. There is no clear and unmistakable evidence that a pre-existing headache disorder was not aggravated by military service. 3. The Veteran was found to have headaches while on active duty and is currently diagnosed with headaches. CONCLUSION OF LAW The Veteran has headaches that are the result of disease or injury incurred during active military service. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1973 to July 1975. On appeal are June 2010 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for migraine headaches, to include as due to contaminated water at Camp Lejeune. When this matter was previously before the Board of Veterans' Appeals (Board) in December 2019 and June 2021, the Board remanded for additional development. The matter has now been returned to the Board for appellate review. 1. Entitlement to service connection for headaches Every veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (holding that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence is required to rebut a presumption of aggravation where the pre-service disability underwent an increase during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). Relevant evidence consists of the Veteran's service treatment records, as well as records of treatment she has received from both private and VA treatment providers and VA opinions obtained in June 2020, July 2020, and July 2021. Review of her service treatment records reflects that, at her June 1973 entrance medical examination, the Veteran was found to have no abnormalities of the neurological system, although she reported experiencing frequent or severe headaches on the June 1973 entrance medical history report. She was treated on multiple occasions during service for headaches. At her June 1975 separation medical examination, the Veteran was again found to have no abnormalities of the neurological system. Post-service treatment records reflect a current diagnosis of and ongoing treatment for headaches. The Veteran has also testified that she has experienced headaches since service. VA has obtained multiple VA examinations and medical opinions over the course of the Veteran's appeal. As described in prior Board remands, however, these examinations and opinions are inadequate, despite the Board's repeated requests for clarification. What is clear, however, is that the Veteran currently experiences headaches, which have been clinically diagnosed. As noted above, the presumption of soundness may be rebutted by clear and unmistakable evidence that the Veteran's headaches existed prior to service and were not aggravated by such service. The Court has described the clear and unmistakable standard as an onerous one consisting of evidence that is undebatable. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). Here, the Board notes that no pre-service records document any complaints of or treatment for a headache disability; similarly, no such disorder was noted at the time of the Veteran's entrance into active duty. In that connection, the Board observes that the Veteran's lay report of experiencing headaches at the time of her entry into service, without confirmation or diagnosis of such disability by a qualified medical professional on the entrance examination report, is insufficient to constitute being "noted at entrance into service." See 38 C.F.R. § 3.304(b). She is thus presumed to have been in sound condition when she entered service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To overcome the presumption, clear and unmistakable evidence must show that a disability both pre-existed service and was not aggravated thereby. Service treatment records clearly demonstrate that the Veteran was treated on multiple instances for headaches while on active duty. In this case, based on all the evidence now of record, the Board is not persuaded that there is clear and unmistakable evidence demonstrating both that the Veteran's headache disability existed prior to service and was not aggravated thereby. Consequently, the presumption of soundness has not been rebutted, and the Veteran is presumed to have been in sound condition at the time she entered service in June 1973. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As the Veteran is presumed to have been in sound condition at the time she entered service, the analysis turns to whether the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C. §§ 1110, 1131. Here, service treatment records reflect that on multiple occasions during service, the Veteran was found to have headaches. In cases such as this, as noted by VA General Counsel, when the presumption of soundness is not rebutted, the law dictates a paradoxical resultnamely, that the disability began during service (even if evidence clearly and unmistakably shows that it pre-existed military service). VAOPGCPREC 3-2003. As noted above, the Veteran was treated during service for multiple complaints of headaches. Since service she has been assigned a diagnosis of headaches. The Veteran has further stated that she has had these problems since service, and medical evidence establishes that she carries a current diagnosis of headaches. Given that the Veteran is presumed to have been sound at entry onto active duty, the Board thus concludes that the Veteran currently suffers from a headache disability that is related to her time on active duty. With application of 38 U.S.C. § 1111, the Board finds that the Veteran's headaches cannot be said, on the basis of clear and unmistakable evidence, to have been extant prior to service and not aggravated thereby. The presumption of soundness is not overcome, and because the record reflects that the Veteran was treated in service for headaches, that she is currently diagnosed with headaches, that she contends that the headaches she now experiences are the same as those shown in service, and as she is certainly competent to report her observation of having the same symptoms of headaches ever since service, her headaches are attributed to her period of military service. A grant of service connection for headaches is therefore warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.