Citation Nr: 21005454 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-29 184A DATE: February 1, 2021 ORDER Entitlement to service connection for chronic migraines is denied. FINDING OF FACT The preponderance of the evidence is against finding that migraines began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for chronic migraines are not met. . 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1976 to February 2001. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by a VA Regional Office (RO). Previously, this matter was before the Board in May 2020 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In September 2020, this matter returned to the Board where once again it was remanded to afford the Veteran a new VA medical opinion to determine the nature and etiology of the Veteran’s migraine headaches to include a secondary opinion as to whether his chronic migraines were caused or aggravated by his currently service-connected depression. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for chronic migraines is denied. The Veteran contends that his migraine headaches began in service and were aggravated by a bicycle accident that occurred while on active duty. Alternatively, the Veteran contends that his current migraines were caused or aggravated by his already service-connected depression. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, 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)). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.303 (a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lastly, to substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). As will be discussed in more detail below, the Board finds entitlement to service connection for chronic migraines is not warranted. The Veteran’s service treatment records reflect the Veteran was treated for headaches twice during active duty service. First in December 1986 and again in August 1988. Later, in June 1993, the Veteran sought treatment after a bicycle accident in which it was reported that the Veteran sustained head trauma with thirty minutes of memory loss. A subsequent CT scan returned with normal results. Upon his separation examination, the Veteran denied frequent or severe headaches. Approximately three years after service, the record indicates the Veteran sought treatment for severe headache pain in February 2004. All primary care examinations prior to this date are silent for reports or treatment for headaches. From April 2005 through August 2009 the record reflects the Veteran denied experiencing headaches. In October 2011 a VA nurse note indicated the Veteran reported having a history of headaches for approximately 30 years. In June 2012 a neurology evaluation, for the first time, diagnosed the Veteran with chronic daily headaches. In support of his claim, the Veteran submitted a headache tracking log dated May to July 2017 as well as a sworn statement dated in February 2017 in which he indicated a history of migraine headaches occurring within one year after military service. The Veteran went on to state that he suffered from headaches prior to his 1993 bicycle accident but they were made worse as a result of the bicycle accident. The Veteran also submitted a lay statement from E.J. dated August 2017 which stated that she has lived with the Veteran over the past 7 years, has witnessed the effects of his migraines on his daily life, and her belief that they stem from his military service. Specifically, she stated how the Veteran experiences 3 to 4 headache episodes a week and they appear to have gotten worse over the past 7 years. When the Veteran has a migraine headache he is forced to lie down in a dark and quiet room which has forced them to cancel many plans over the years including vacations. The headaches also negatively affect his sleep and overall mood. The facts of this case are complex and, therefore, several VA headache examinations have been obtained to attempt to resolve the matter. On the one hand, it is clear the Veteran had an in-service bicycle accident and at least some headache related complaints in service – albeit no evidence of in-service onset of a chronic headache disability. After service, there is both lay and medical evidence showing some continuity of some headache symptomatology since service. On the other hand, headache symptomatology attributed to a disability (that is, a chronic condition) is not shown in the record until many years after service and no medical provider has linked a headache disability to any incident of service. Unfortunately, prior examinations obtained by VA have been found by the Board to be inadequate for adjudicative purposes (and, in any case, none of which found a nexus to be likely) and, to that effect, the Veteran was afforded a new VA medical opinion in October 2020 for his service connection claim for chronic migraine headaches. The examiner opined that the Veteran’s migraines are “less likely than not caused by, related to, or aggravated beyond natural progression by military service”. The examiner noted the Veteran’s denial of frequent or severe headaches at his separation examination. He further considered the Veteran’s February 2017 affidavit. However, the examiner commented that within the Veteran’s affidavit there were inconsistencies. Specifically, the Veteran stated he had a history of headaches occurring within one year of separation from service, however, he goes on to state that he suffered from headaches prior to his 1993 bicycle accident but were made worse as a result of the accident. The examiner explained that “memory is an unreliable recorder of events and whenever possible, objective evidence is preferred”. As such, the examiner gave more probative weight to the Veteran’s statements made during his separation examination for they were made “closest in proximity to the date of onset” as opposed to the 2017 affidavit. The examiner went on to note the Veteran was documented, in his STRs as having headaches on two occasions prior to 1993, but both were in conjunction with, and were part and parcel of, an acute upper respiratory tract infection, and therefore did not represent headaches that could reliably be called a part of a headache condition. He further noted that 2004 appeared to be the first complaint to a medical provider post service of a headache, with no chronicity noted. The next complaint occurred in 2011, with periods of headache denial reported in Primary Care notes between the years 2004 and 2011. The examiner thus concluded the Veteran’s current migraine headaches were not related to service. The more likely cause of his migraines was that of inheritance or genetics citing several medical research articles indicating “the importance of inheritance in migraine[s] has long been recognized”. The examiner also opined that the Veteran’s migraines “are less likely than not caused or aggravated by his service-connected depression”. In so doing, the examiner explained that migraines and depression tend to be “co-morbid” conditions, “often sharing the same risk factors, such as stressful life events”. However, the examiner opined that association is not causation and “common co-morbidities do not support a nexus of causation”. In so concluding, the examiner referenced several medical articles and studies submitted by the Veteran that show the above conditions are in fact co-morbid in nature however, explaining that the articles do not go so far as to indicate causation nor association. The Board finds the October 2020 VA medical opinion to be persuasive. The examiner fully considered the Veteran’s assertions, lay statements and medical history as well as providing a thorough rationale including reference to medical studies. Furthermore, the examiner addressed the inconsistencies of the Veteran’s own statements and supported his decision to discredit some statements while relying on others in the record as well as considering the articles submitted by the Veteran. See Polovick v. Shinseki, 23 Vet. App. 48 (2009). The Board acknowledges the Veteran’s and E.J.’s belief that there is such a causal connection but finds they both lack the competency to render such a medically complex opinion. See Layno v. Brown, 6 Vet. App. 465, 469(1994). It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a)(1). It is not shown that the Veteran or E.J. is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of migraine headaches. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore, as the October 2020 examiner pointed out, there is a difference between headache related symptoms and a headache condition. The examiner noted that a person can experience a headache for numerous reasons, such as the Veteran’s in-service complaints of headaches related to an in-service upper respiratory infection. That is different than having a chronic disability. In that regard, the examiner further found the Veteran’s lay statements describing the symptoms chronology was inconsistent and, therefore unreliable as to the onset of his headaches as well as to their duration and severity. The Board finds these insights by the examiner consistent with the record and, indeed, the Board finds the Veteran’s statements of diminished probative weight in light of these inconsistencies. See Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (affirming rejection of lay evidence based, in part, on fact that it was inconsistent with the record). As indicated above, the Veteran denied experiencing nor having a history of severe headaches at his separation examination. However, in a sworn statement dated in February 2017, the Veteran claims his headaches began prior to the 1993 bicycle accident, they were made worse as a result of said accident, and he has experienced worsening headaches ever since. Here, we once again have inconsistencies, as the record contains no documented reports or treatment for headaches post service until 2004 after several years of consistent denial of the existence of headaches. Id. Thus, with respect to a nexus between the Veteran's current chronic migraines on a direct as well as a secondary basis, the Board assigns more probative weight to the October 2020 VA examiner's opinion which denied service connection on a direct as well as a secondary basis after thorough review of the Veteran's claims file, consideration of the Veteran’s lay statements, including a sworn statement, as well as supporting medical research. As such, the Board finds a nexus to service unlikely, to include as secondary to an already service-connection condition. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.