Citation Nr: 21077540 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-54 303 DATE: December 30, 2021 ORDER Entitlement to service connection for migraine headaches, to include as due to a service-connected traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran's migraine headaches are not shown to be causally or etiologically related to an in-service event, injury, or disease; and are not proximately due to nor aggravated beyond its natural progression by service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for migraine headaches, to include as secondary to a TBI, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1959 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Board remanded this matter for further evidentiary development in August 2020 and July 2021. The case has returned to the Board for appellate review. Entitlement to service connection for migraine headaches, to include as due to a service connected TBI Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted where there is disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran contends that her migraine headaches are due to her military service, to include as due to her service connected TBI. Specifically, at the October 2019 Board hearing, the Veteran testified that she started getting migraine headaches a few months after her in-service TBI event and she continues to get migraines but does not get them as often. The Veteran is service connected for a TBI disability and a left side forehead scar, a 10 percent disability rating was assigned for each disability, effective June 6, 2013. Thus, there is evidence of service-connected disabilities. The question for the Board is whether the Veteran has a current migraine headache disability that is related to her military service or is proximately due to or the result of or was aggravated by a service-connected disability. While the Veteran has a current disability, the preponderance of the evidence is against finding that the Veteran's migraines are proximately due to or the result of or aggravated by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Board observes that service connection for migraine headaches may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's migraines and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Turning to the record, the Board notes that the Veteran's service treatment records (STRs) are silent for complaints of or treatment for migraine headaches before or after the in-service TBI event. She denied frequent or severe headache at the April 1961 separation examination. Regarding post-service complaints of or treatment for migraine headaches, an April 2009 VA treatment note reveals that the Veteran was seen for balance problems with an onset in 2008, and she denied any headache symptoms at that time. The Veteran also denied headache symptoms during several VA treatment visits from January 2007 through April 2021. Additionally, a February 2015 VA treatment note reveals that the Veteran fell on her face and complained of headaches because of the fall. The physician noted that the Veteran had cervical surgery in September 2014 and advised the Veteran to go to urgent care for a better assessment if she continued to have headaches, as she may have fractured something. A March 2018 VA treatment note reveals that the Veteran reported she began having migraines again after five years without migraine symptoms. She reported a history of migraines that stopped after she had a hysterectomy. A December 2019 VA treatment note reveals that the Veteran complained of headaches, mostly stable, she reported that she was injured during service and her headaches improved once she retired. A March 2021 VA audiology consult reveals that the Veteran reported a history of migraine headaches that she had not had in years. Regarding a nexus opinion for the Veteran's migraine headaches, the Veteran was afforded VA TBI and Headaches examinations in September 2018. The examiner noted migraine headaches and light sensitivity as symptoms and residuals of her TBI. The examiner confirmed the Veteran's migraine diagnosis and remarked that there is no mention of headaches in the Veteran's STRs or separation documentation. As previously mentioned, the Board remanded this matter in August 2020, finding the September 2018 examination report inadequate for rating purposes as the examiner's opinions are internally inconsistent. The Board found remand warranted to obtain a VA addendum opinion, private treatment records, and any outstanding VA treatment records. Pursuant to the August 2020 Board remand, VA addendum opinions were obtained in September 2020, December 2020, February 2021, and May 2021. They each provide negative nexus opinions, rationalizing that the Veteran indicated she did not experience headaches or self-treat for any illnesses on her separation examination and that there was a lack of objective medical evidence of the Veteran's post-service headaches. The Board remanded this matter again in July 2021, finding remand warranted because the RO did not substantially comply with the directives set forth in the August 2020 remand. See Stegall v. West, 11Vet. App.268, 271 (1998). Specifically, the Board found that the September 2020, December 2020, February 2021, and May 2021 VA opinions did not address whether the Veteran's migraine headaches were aggravated by any TBI residuals, constituting a Stegall violation. The Board also found the VA opinions inadequate as each are based on a lack of contemporaneous records. The Board additionally found remand warranted to obtain the Veteran's private treatment records, she provided releases to obtain the private treatment records, but she was not notified that the records were unable to be obtained by VA until after the last supplemental statement of the case (SSOC) was generated in June 2021. See June 2021 Notification Letter. Pursuant to the July 2021 Board remand, the RO sent the Veteran and her representative a development letter in July 2021, providing her with the opportunity to identify any relevant private treatment records and provide releases for VA to obtain those records. To date, neither the Veteran nor her representative returned the form or otherwise submit additional information regarding her private treatment records. Also pursuant to the July 2021 Board remand, a VA medical opinion was obtained in September 2021. The September 2021 examiner provided a negative nexus opinion with the rationale that the Veteran's April 1961 separation examination was silent for complaints of headaches. The examiner also noted that a March 2018 neurology consultation indicates that the Veteran started having headaches in February 2018 and her past medical history in her VA treatment records does not include history of headaches, the assessment indicates a recent event that could have been a posterior circulation stroke. The examiner further remarked that the Veteran's headaches are more likely caused by her stroke and not due to service or due to or aggravated by her service connected TBI disability. The Board notes that there is no opinion to the contrary. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran testified at the October 2019 Board hearing that her migraine headaches began a few months after her in-service TBI event. However, the Veteran's VA treatment records are silent for complaints of or treatment for migraine headaches until a 2015 fall and again in 2018, which were attributed to a stroke and not to her TBI. Additionally, the Veteran's family members and friends submitted statements in December 2019 concerning her migraine headaches. The statements specifically note that the Veteran did not suffer from headaches prior to her military service, she was treated for sinus headaches after service, she experiences severe headaches due to the sun, lights, and stress, and has had to change her prescription glasses multiple times due to her headaches. The Board notes that these statements provide evidence of an indication that the Veteran suffered from headaches since her military service. However, these statements are not supported by objective medical evidence as the Veteran constantly denied headache symptoms during many VA treatment visits. Further, these lay statements indicate that her migraine headaches may be related to sinuses, allergies, or related to her prescription glasses and not particularly due to or aggravated by the Veteran's TBI. While the Veteran, her family, and friends, believe her migraines are proximately due to or the result of/aggravated by a service-connected disability, they are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran, as well as her family members and friends, in this case because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board notes that the Veteran's VA treatment records indicate the Veteran is a retired licensed practical nurse (LPN). However, she has not submitted an opinion or rationale concerning the etiology of her migraine headaches, other than that she has suffered from migraines since her military service; and the Board, again, notes that her VA treatment records indicate otherwise, and any complaints of headaches were attributed to a fall and a stroke, and not to her TBI. Consequently, the Board gives more probative weight to the July 2021 VA examiner. (Continued on the next page) Although the Veteran has established a current disability, the evidence weighs against a finding that her migraines are causally related to her service or is proximately due to or aggravated by service-connected disability. Since the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. For these reasons, the claim is denied. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.