Citation Nr: 21007405 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-23 006 DATE: February 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as major depressive order, is granted. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s acquired psychiatric disorder, currently diagnosed as major depressive order, was incurred during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his migraine headaches had their onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as major depressive order, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1975. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. The hearing transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as major depressive order The Board finds that the Veteran has an acquired psychiatric disorder, currently diagnosed as major depressive order, that is related to in-service psychiatric symptoms, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records (STRs) contain complaints of psychiatric symptoms during service. The Veteran’s July 1970 enlistment examination indicates that the Veteran’s psychiatric state is normal, and he reported no psychiatric symptoms. In an April 1975 treatment note, he reported forgetfulness during conversation and occasional inability to form words and sentences properly. In the Veteran’s April 1975 separation examination, he reported memory loss or amnesia, as well as frequent or severe headaches. The examiner noted forgetfulness during conversation and trouble forming words, as well as multiple headaches suggestive of tension. The Veteran reported that his depression began in service and continued thereafter. See February 2014 Notice of disagreement; December 2020 Board hearing. He indicated that his anxiety began following incidents of inclement weather at sea, technical incidents, and a hostile work environment. See June 2017 Correspondence. He reported experiencing symptoms such as nightmares, headaches, anxiety and panic attacks. Following separation from service, the Veteran reported increasing depression and strained interpersonal relationships. In the early 1990s, he sought treatment from a private therapist when the depression symptoms worsened. By the late 2000s, the depression symptoms worsened again, and he sought treatment from VA and private treatment. Id. The Board finds that the Veteran has provided credible and competent testimony regarding the symptoms of his psychiatric disability both during and following service. The lay statements are corroborated by the Veteran’s former spouse, who served with him on active duty. She indicated that the Veteran experienced headaches and nightmares during service, and that these symptoms have continued and worsened since then. See December 2020 Board hearing. The lay evidence is further corroborated by VA treatment records dated 2011 to 2018, indicating complaints of and treatment for symptoms to include anxiety, depression and panic attacks. In February 2014, the Veteran submitted a private medical opinion by Dr. L.E. dated November 2013. Dr. L.E. stated that he treated the Veteran from late 2011 through the time of writing. He opined that the situations and events the Veteran experienced during service significantly contributed to his subsequent symptoms, including the present-day severe depression and migraines. Dr. L.E. reasoned that the Veteran experienced life-threatening situations in service, which led to severe anxiety at the time and afterwards. The hostile work environment only exacerbated his condition and led to the severe ongoing depression he experienced from service to the present. In February 2014, the Veteran submitted a second private medical opinion by Dr. S.S. dated December 2013. Dr. S.S. stated that he treated the Veteran from February 2008 to December 2009 for a total of 56 sessions of psychotherapy. The Veteran reported that his anxiety and depression began in service; prior to service, he experienced no such symptoms. The Veteran reported several stressful experiences in service and that his symptoms had their onset following such incidents. Dr. S.S. opined that the Veteran suffers from chronic depression and anxiety. He opined that the fact that his symptoms began during service suggests that his in-service experiences significantly contributed to his current depression, anxiety, panic attacks and headaches. The Board finds that the private medical opinions are probative because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s acquired psychiatric disorder, currently diagnosed as major depressive order, was incurred in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder, currently diagnosed as major depressive order, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for migraine headaches The Board finds that the Veteran has a current diagnosis of migraine headaches that had its onset in service, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system such as migraines, to a degree of 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, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record in this case is clear as to whether the Veteran has a neurologic disability. The post-service medical treatment records reflecting a continued diagnosis of migraine headache. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs show complaints of frequent headaches that began during service. In the July 1970 enlistment examination, the Veteran reported no headaches. In the April 1975 separation examination, he reported frequent and severe headaches. The examiner noted headaches suggestive of tension. The Veteran has consistently and credibly reported that he experienced migraine headaches in and since service. See December 2020 Board hearing; June 2017 Correspondence. The Veteran’s former spouse, who served with him on active duty, also testified that the Veteran experienced headaches during service, and his overall symptoms have continued and worsened since then. See December 2020 Board hearing. The Board finds that the Veteran and his spouse have provided credible and competent testimony regarding his headache symptoms both during and following service. The lay evidence is further corroborated by the Veteran’s post-service VA treatment records, dated 2011 to 2018, indicating complaints of and treatment for migraine headaches. Furthermore, in February 2014, the Veteran submitted private medical opinions regarding the etiology of his migraine headaches. Dr. L.E. opined that the situations and events the Veteran experienced in service significantly contributed to his subsequent symptoms, including the migraine headache condition. Dr. S.S. opined that his in-service experiences significantly contributed to the Veteran’s overall symptoms, to include headaches. The Board finds that these opinions are probative, as noted above. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s migraine headache disability had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for migraine headaches is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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.