Citation Nr: 21015532 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-05 818 DATE: March 17, 2021 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT A headache disability was noted on induction, and is reasonably shown to have increased in severity beyond the natural progression during the Veteran’s active duty service. CONCLUSION OF LAW Service connection for migraine headaches is warranted. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1976 to August 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision, which denied service connection for migraine headaches. In March 2021, a virtual Board hearing was held before the undersigned. [The Board notes that a final October 1998 rating decision denied service connection for migraine headaches. The Regional Office (RO) adjudicated the instant claim of service connection for migraine headaches on the merits (implicitly reopening the claim), and the Board finds that the Veteran is not prejudiced by the Board proceeding similarly.] Entitlement to service connection for migraine headaches is granted. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When it is found that a disability for which service connection pre-existed service, 38 U.S.C. § 1153 applies; for service connection to be warranted, it must be shown that the preexisting injury or disease was aggravated by the veteran’s service. Aggravation will be found where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). “Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). Factual Background The Veteran contends that his headache disability (which pre-existed service) was aggravated by his service. On January 1976 enlistment examination, he checked the appropriate box to report a history of frequent or severe headaches. The physician examiner specifically noted, “Left sided temporal headache – once a year – does not prevent from enlisting. Relieved by Aspirin NS.” The Veteran’s service treatment records (STRs) show multiple complaints of, and treatment for, headaches. An April 1978 record notes a complaint of a severe headache. The Veteran reported that the migraine symptoms are on and off, but were occurring more frequently. He indicated that they used to occur approximately six times per year but are now occurring weekly. An April 1979 record notes a complaint of a bad headache with nausea and vomiting; the Veteran reported “this occurs more frequently than previously.” On August 1982 service separation examination, the examining physician noted “moderate migraines.” Postservice treatment records show ongoing treatment for migraine headaches. See June 1992, April 2000, and September 2020 treatment records. An April 1998 lay statement from the Veteran’s spouse indicates that since 1990 (when she met him), the Veteran has had “unpredictable” migraines that can manifest three or four times a week, sometimes lasting two days in duration, and that “sometimes he can go weeks without one.” In April 2013, a VA physician provided a negative nexus (to service) opinion. He reviewed the record, but did not examine the Veteran. He opined that the Veteran’s current headache disability is related to the condition that pre-existed service. He then opined that the pre-existing headache disability was not increased beyond its natural progression during activity duty service. The rationale noted the April 1978 STR (regarding symptoms appearing closer together, six times per year), but stated that the “current headaches are the typical pattern seen in these types of headaches” (without providing further rationale). Analysis The Veteran has a current diagnosis of migraine headaches. The record shows that a headache disability pre-existed the Veteran’s service, as it was noted on January 1976 service entrance examination. Accordingly, the analysis turns to whether the pre-existing headache disability was aggravated during/by the Veteran’s service. Aggravation is established by showing an increase in disability (beyond natural progression) during service. Here, the Veteran’s entrance examination notes temporal headaches that occurred once a year, and were relieved by aspirin (suggesting the disability was no more than mild on service entrance). His STRs show multiple complaints of, and treatment for, severe headaches (some including manifestations of nausea and vomiting), as frequently as once per week. Such manifestations and frequency clearly reflect a worsening of the headaches during On August 1982 service separation examination, moderate migraines were noted. Such contemporaneous, competent (medical) notations/findings support a finding that the severity of the headache disability increased in severity and character (from temporal relieved by aspirin to migraine -with migraine aura) during service. The analysis next turns to whether there is clear and unmistakable evidence rebutting the presumption of aggravation (to which the Veteran is entitled), such as clear and unmistakable evidence that the increase in severity of the headaches during service was not beyond the natural progression of the disease. The Board finds the medical opinion on April 2013 VA examination (that “current headaches are the typical pattern seen in these types of headaches”) is inadequate for rating purposes. It is conclusory (as it does not discuss the actual clinical data in the STRs and how they correspond the generally accepted medical principles regarding the natural course (over six years of service) of once yearly temporal headaches, non-symptomatic on service entrance that were occurring once a year. It does not describe the normal course of progression for the headaches noted on induction that would have been expected (does not distinguish the extent to which a change in nature and frequency of manifestations in service would be normal progression, and at what point, if ever, it would rise to abnormal). Notably, the examiner does not cite to any medical text or treatise to support his conclusion that it is “typical” (i.e. normal) for once-a-year temporal headaches in a young man to progress during service to the extent shown here. Accordingly, the Board finds that clear and unmistakable evidence that the Veteran’s headache disability was not aggravated by service is not shown. The Board has considered whether development for an addendum (clarifying) medical advisory opinion in this matter is necessary, and finds that it is not. The Veteran’s STRs reflect that his headaches were described as temporal headaches occurring one a year and relieved by aspirin, suggesting a disability picture of no more than slight or mild headache disability. The frequency of the headaches increased to six times a year, then weekly, during service (and manifestations were noted to include nausea and vomiting. On separation they were described as moderate migraines. Such increase in severity clearly reflects an increase in severity of the disability from mild to moderate (consistent with a finding of increase in severity from noncompensable to compensable level). There is ample lay evidence that such increase in severity continued (was not acute and resolved). There is no probative and persuasive competent evidence in the record (the opinion against the claim having been found inadequate) that the increase in severity of the disability was only “natural progressive” Resolving remaining reasonable doubt in the Veteran’s favor, as required under 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, the Board finds that the Veteran’s headache disability was aggravated by his service, and that service connection for migraine headaches is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.