Citation Nr: 21007699 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-18 574 DATE: February 10, 2021 ORDER Service connection for migraine headache is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of migraine headache. 2. Symptoms of migraine headaches began during service and have been present since service separation. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from September 2007 to May 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for migraine headaches. In November 2019, the Veteran testified at a Board videoconference hearing from the RO in Boston, Massachusetts, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. 1. Service Connection for Migraine Headaches The Veteran contends that service connection for migraine headaches is warranted. The Veteran testified that the headaches began during service, a few months after an in-service back injury. The Veteran also contends that headaches were caused or aggravated by the service-connected back disability because back pain triggers headaches. While, the Veteran acknowledged a history of head injury in spring 2006, prior to service entrance in September 2007, he asserts that he only had two to three minor headaches in the weeks following the head injury, which resolved thereafter. The Veteran asserts that he did not begin to have chronic headaches until about one and a half years into active duty service, after the in-service back injury. See November 2019 Board hearing transcript, April 2017 VA Form 9, January 2017 Notice of Disagreement. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Board finds that the Veteran has a current diagnosis of migraine headaches. See March 2016 VA treatment record, December 2015 VA examination report. Initially, the evidence indicates that the Veteran sustained head injury prior to service due to a baseball accident in February 2006 during high school. At the time of the head injury, the Veteran reported headaches for 10 to 15 minutes. The pre-service treatment note shows a diagnosis of mild concussion. The Veteran testified to one to three minor headaches for a few weeks following the head injury that resolved, but denied receiving any treatment for headaches, or missing work or school for headache symptoms prior to service. While the Veteran endorsed a history of head injury during the November 2006 enlistment examination, he denied problems with frequent or severe headaches at the time of enlistment, and headaches were not “noted” during the enlistment examination. See February 2006, November 2006 service treatment records; see also November 2019 Board hearing transcript. Because headaches appear to have resolved prior to service entrance and were not “noted” in the service enlistment report, the Veteran is presumed sound at service entrance and the question of aggravation by (during) service is not applicable. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of headaches in service and since service separation that were later diagnosed as migraine headaches, i.e., migraine headaches were directly “incurred in” service. Service treatment records show that the Veteran denied problems with severe or frequent headaches during service enlistment and within the first year of service. See November 2006, September 2007 service treatment records. Problems with headaches are first noted during service in August 2009, at which time the Veteran reported a headache of five to seven days duration. The conclusion was headaches, for which Motrin was prescribed. In June 2010, the Veteran endorsed an increase in the frequency and quality of headaches over the last year, which he described as a chronic pounding occurring at least once a week for up to three days duration with associated nausea, photophobia, and vomiting. Diagnosis was common migraine without aura, for which migraine medication was prescribed. Subsequent treatment notes indicate that prophylaxis treatment was added to the treatment regimen to treat headaches and borderline hypertension, as headaches were worse despite being on migraine medication. See June 2010, July 2010, September 2010, November 2010, February 2011 service treatment records. Post-service treatment notes show continued treatment for migraine headaches. See February 2016, March 2016 VA treatment records. The VA examiner in December 2015 opined that the migraine headaches were not caused by or incurred in service. The examiner reasoned that a 2010 service treatment record indicates that the Veteran had a baseball injury in 2006 prior to service that caused chronic headaches, and that his headaches should be considered to have preexisted service. In a January 2016 opinion, the examiner opined that pre-existing headaches were not aggravated beyond a natural progression by service because there was no head injury in service and no other events during service that would reasonably be expected to result in worsening of his headaches. See December 2015, January 2016 VA examination reports. However, the VA opinions are of little probative value as they are based on an inaccurate factual premise of chronic preexisting headaches with no worsening of headaches during service. As noted above, the February 2006 (pre-service) treatment note indicates that the Veteran only reported headaches for 10 to 15 minutes following the injury and subsequent histories indicate only minor headaches for a few weeks after the concussion, but no evidence of treatment for headaches prior to service enlistment. As, the headaches were not “noted” at service enlistment the Veteran’s was presumed sound at service entrance; for this reason, neither the VA examiner nor VA adjudicators may assume as a fact that chronic headaches preexisted service, and such assumption may not form the basis of a medical opinion or VA adjudication. Moreover, the VA examiner did not consider that fact that there were no additional symptoms or treatment for headaches until almost two years into active duty service, which were noted to be more severe in quality, frequency, and duration than any minor headache reported prior to service. The Veteran did not even require treatment for headaches until he developed weekly migrainous headaches lasting days in duration. These migrainous headaches are first noted during service, notably, when the Veteran was also found to have borderline hypertension. So, even if, arguendo, the Veteran had a preexisting headache disability, the VA opinion is not persuasive in showing the headaches were not aggravated during service because the opinion takes no recognition of the worsening of headaches during service beginning in 2009. Failure by VA to show that a preexisting headache disability was not aggravated during service simply converts the case back to one for direct service connection, which is where this case starts and ends. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for direct service connection for migraine headaches have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.