Citation Nr: 21074377 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-18 766A DATE: December 15, 2021 ORDER Entitlement to service connection for headaches is granted. FINDING OF FACT The Veteran was diagnosed with complicated migraines during service and the evidence probatively establishes that he has experienced chronic and continuous headache symptoms since service discharge. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to September 1987, October 2001 to August 2002, and October 2003 to November 2003. The Veteran also has additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the July 2013 Substantive Appeal, the Veteran declined an optional Board hearing. Additionally, the Veteran has never requested a Board hearing at any point during the continuation of his proceedings. See Quinn v. Wilkie, 31 Vet. App. 284 (2019); 38 U.S.C. § 7107(b). The Board may proceed with its adjudication of the claim without a Board hearing. The undersigned Veterans Law Judge has been assigned to consider the matter pursuant to 38 C.F.R. § 20,106(a) (formerly 19.3(a)). The Veteran seeks entitlement to service connection for headaches, alleging that his headache disability began during his active duty service in Fort Hood, Texas and has continued to the present. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be warranted if any applicable presumptive service connection regulations apply to a veteran's specific circumstances. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases set forth in 38 C.F.R. § 3.309(a) may be established on a presumptive basis pursuant to 38 C.F.R. § 3.303(b). The chronic diseases listed in 38 C.F.R. § 3.309(a) includes "other organic diseases of the nervous system," which reasonably encompasses migraine headaches. See M21-1, Part V, Subpart iii, Ch. 12, Sect. A.1.d. (accessed Dec. 31, 2021) (recognizing migraine headaches as an organic disease of the nervous system). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that a disease noted in service was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338 ; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Id. at 1336. This matter was previously denied in an October 2018 Board decision. At that time, the Board noted that February 2010, August 2010, and February 2016 VA examinations were inadequate for adjudicative purposes. Instead, the Board determined that a February 2018 VA medical opinion was the most probative evidence of record, and it weighed against the award of service connection for headaches. The February 2018 VA examiner opined that the Veteran's headaches were vascular in nature and likely not caused by an external source. The examiner found no evidence of a service-related headache condition during the Veteran's first period of active duty service, and noted that the headaches mentioned in the service treatment records from the Veteran's period of active duty between 2001-2002 "[were] related to acute illness and [were] entirely separate from the [Veteran's] current vascular headaches." The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand (JMR) vacating the October 2018 Board decision and remanding the matter to the Board for reconsideration consistent with the terms of the JMR. In the JMR, the parties (the Veteran and VA) agreed that the Board erred in relying on the February 2018 VA medical opinion for two reasons. First, the February 2018 VA examiner did not discuss a November 2003 Department of the Army record, in which a neurologist stated that the Veteran's brain MRI and posterior circulation MRA were normal, and he was young, strongly suggesting that his episodes of headaches with dizziness were complicated migraines. Second, the February 2018 examiner provided a conclusory statement that the Veteran's in-service headaches were due to acute illness and entirely separate from the currently diagnosed vascular headaches. The VA examiner provided no explanation as to how she reached this conclusion. In a January 2020 decision, the Board additionally noted a November 2003 in-service differential diagnosis of vestibular migraine, and remanded the claim for a new VA examination, to be conducted using both the vestibular and neurological disability benefits questionnaires. The examiner was requested to review the November 2003 in-service neurology records describing complicated and vestibular migraines and to discuss whether the Veteran's headaches were vascular or vestibular in nature. The Veteran attended a VA headaches/neurological examination in February 2020, where the VA examiner confirmed a diagnosis of "migraine including migraine variants." On the issue of medical nexus, the VA examiner focused on the red herring issue of the Veteran's headaches preexisting service, simply because he marked that he experienced frequent or severe headaches on his September 1983 entrance Report of Medical History. The Board had already determined that the Veteran was sound at service entrance, despite this subjective notation. See December 2015 Board remand decision. The RO obtained an addendum opinion in December 2020 on the issue of whether "the Veteran has [a] vascular condition that had onset in service or within one year following separation from service, or [is] causally related to service." Instead of focusing on a generalized headache condition, and contrary to the language set forth in the January 2020 Board remand directives, the RO's nexus question focused exclusively on the presence of a vascular condition related to the Veteran's active duty service. The December 2020 VA examiner acknowledged the Veteran's November 2003 in-service neurology records showing MRI and MRA results that strongly suggested that the Veteran experienced complicated migraines involving symptoms of headache, nausea, and dizziness, and opined that these findings were most consistent with vestibular migraine headaches. The VA examiner noted diagnoses of migraine headaches in October 2009 treatment records and the February 2020 VA examination, and opined that the Veteran had a diagnosis of vestibular migraine headaches, and not vascular migraine headaches (as indicated by the February 2018 VA examiner). The VA examiner explained that although common migraines are characterized by a moderate to severe pounding or throbbing headache, vestibular migraine may or may not involve headaches in combination with vestibular symptoms such as vertigo, imbalance, nausea and vomiting. In July 2021, a vestibular VA examination was conducted, as requested in the January 2020 Board decision. Upon examination, the VA examiner found no evidence of an ear or peripheral vestibular condition, and stated that the Veteran's vestibular condition had resolved. Again, the RO presented the VA examiner with the question of whether the Veteran suffered from a vascular condition related to his active duty service. Much like the December 2020 VA examiner, the examiner opined that the Veteran did not have a current diagnosis of a vascular condition. Having fully reviewed the electronic claims file, the Board finds that the evidence sufficiently establishes that the Veteran's in-service migraine headache, examined in November 2003, was not chronic in service, but has remained chronically and continuously symptomatic since his separation from active duty service. As such, the Veteran is entitled to service connection for a headache disability on a presumptive service connection basis under 38 C.F.R. § 3.303(b). Initially, the Board notes that the December 2020 VA examiner appears to suggest that the Veteran's vestibular migraine headache diagnosed during the appellate period has the same symptomatology as the vestibular migraine headache diagnosed during the Veteran's active duty service. Additionally, the Veteran's private and VA treatment records document chronic and continuous complaints of headaches since the Veteran's separation from active duty service in October 2003 and throughout the initiation and pendency of this service connection claim. As explained by the February 2018 VA examiner, the Veteran reported several isolated bouts of headaches and dizziness in 2001 and 2002, with each report of symptoms attributed to a specific acute and underlying illness distinct from a neurological headache disability. See January 2001 episode (attributed to sinuses), June 2001 episode (attributed to heat-related illness), November 2001 episode (attributed to upper respiratory infection), January 2002 episode (attributed to sinusitis/upper respiratory infection), March 2002 episode (attributed to right otitis media), and August 2002 episode (attributed to probable hypoglycemia). On October 31, 2003, the Veteran was seen for sudden onset of dizziness and headache. He was assessed with possible labyrinthitis. On November 2, 2003, the Veteran was seen by a neurologist for an assessment regarding deployability. The Veteran reported a 4-day history of vertiginous vertigo (room rotating clockwise) with presyncopal sensation. The episodes were reported as lasting 3 to 4 minutes and possibly provoked by sitting or standing or any change in head position. The Veteran was provided a differential diagnosis of vertigo/vestibular migraine/[transient ischemic attack] (TIA). A neurology note from November 4, 2003 documented the Veteran's reports of vertigo. The physician stated that the Dix-Hallpike maneuver was bilaterally negative, and the Veteran was not orthostatic. The Veteran was young and his brain MRI and posterior circulation MRA were normal, suggesting that his episodes were complicated migraines and not TIAs, orthostatic presyncope, or benign positional vertigo. On multiple occasions, the Veteran indicated that he was forced to medically retire from military service due to a chronic headache condition; however, this contention is rebutted by the Veteran's service department records. The November 2003 neurologist clearly indicated that the Veteran was eligible for deployment from a neurological perspective. See November 4, 2003 statement & November 2, 2003 pre-deployment assessment. Indeed, the Veteran's unresolved neurological complaints from October/November 2003 were not cited as the reason for his release from active duty service at Fort Hood; nor were they listed as his reason for discharge from the National Guard on his NGB Form 22. The reason listed for his discharge from the National Guard in May 2004 was "Para 8-27i NGR 600-200, Failure to obtain required Physical per AR 40-501 & NGR 40-501." Nevertheless, since the Veteran's October 2003 separation from service, the medical records and lay testimony show continuity of headache symptomatology. The Veteran was seen by his private physician in March 2004 with a report of experiencing ongoing headaches and dizzy spells for several months. He was assessed with headaches of unknown etiology and benign positional vertigo. In March 2005, the Veteran was seen by a private physician where he reported episodes of dizziness and biparietal headache that lasted several hours the day before the examination. He was assessed with dizziness of uncertain etiology. In July 2005, the Veteran reported to his private physician that he was experiencing transient headaches, each lasting less than a minute and occurring every few days. He was assessed with headaches and vertigo. In March 2007, the Veteran was again evaluated by a private physician for complaints of myalgias, headache, and dizziness. He was assessed with an upper respiratory infection. At the Veteran's initial visit to VA providers in April 2008prior to the filing of his service connection claimthe Veteran reported a history of intermittent headaches for the past 5 years, placing onset near the time of his October/November 2003 in-service complaints and diagnosis of complicated migraines. He described the headaches as manifested by sudden onset of sharp pain, occurring mostly on the left side of the head. The Veteran was seen in October 2009 with complaints of chronic headaches and requested a referral to a neurologist. A February 2010 VA examiner assessed the Veteran with headaches, possibly related to trigeminal neuralgia. At the February 2010 VA neurology visit, the Veteran reported the presence of intermittent headaches since 2004. He indicated that his headaches occurred approximately once per week, usually on the left side of the head, and lasted a few seconds to a few minutes in duration. A March 2010 CT of the head showed mild cerebellar atrophy, and a follow-up visit in May 2010 listed the Veteran's headaches as "improved." The Veteran was evaluated by a private neurologist in June 2012. He reported suffering from headaches for about 8 to 9 years, placing onset near the time of his October/November 2003 complaints and diagnosis of complicated migraine. He reported dizziness and prodrome prior to the onset of a headache, which typically manifested less than 6 hours later. The headaches were described as located over the left occipital region/parietal and lasted less than an hour in duration. The headaches had a diurnal pattern. A CT of the head in June 2012 was unchanged from the March 2010 report. A brain MRI in July 2012 was normal. The remainder of the Veteran's VA treatment records document consistent reports of headaches throughout the appellate period. See e.g., October 2013 neuropsychological assessment (recurrent headaches); September 2016 VA telephone encounter (having bad headaches). The Veteran was also assessed with headaches, variably diagnosed, in the February 2018, February 2020, December 2020, and July 2021 VA medical opinions. Throughout the appellate period, the Veteran has submitted several lay statements indicating that his headaches began during his service at Fort Hood, and have continued to the presence. The Veteran is competent to report symptoms and experiences observable by his senses, and the Board finds the Veteran's lay reports regarding continuity of headache symptoms since service to be corroborated by the post-service medical evidence cited above. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). As such, the Veteran's lay statements are provided significant probative value and evidentiary weight in this determination. [Continued on Next Page] The Veteran's service treatment records document a sudden onset of neurologically significant headaches in October 2003, manifested by dizziness and sharp headache pain. The lay and medical evidence following service shows a chronic and continuous pattern of headache signs, symptoms, and diagnoses sufficient to support the award of service connection for headaches on a presumptive basis under 38 C.F.R. § 3.303(b). As such, the Veteran's appeal is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.