Citation Nr: 21015747 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-18 881A DATE: March 18, 2021 ORDER Service connection for headaches is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has a headache disability that was caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1971 to August 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Most recently, this issue was before the Board in November 2020. At that time, the Board remanded the claim for additional evidentiary development, specifically a nexus opinion. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the remand directives from November 2020 regarding the claim for service connection for headaches. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Service connection may be established for a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection will be granted on a direct basis when there is competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between the in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. A “veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The Veteran is seeking service connection for headaches and presents two theories of entitlement for his claim. First, the Veteran contends that he experienced headaches during service and such headaches have continued since service. Alternatively, he contends that his headaches were either caused or aggravated by his service-connected disabilities. There are two opposing medical opinions of record. In a December 2016 private Disabilities Benefits Questionnaire (DBQ), the Veteran’s private physician diagnosed the Veteran with migraine headaches. Upon examination, the clinician opined that the Veteran’s tinnitus, sleep apnea, and anxiety contributed materially and substantially to the cause and permanent aggravation of the Veteran’s migraines. In so finding, the clinician cited medical literature for the premise that there is a positive correlation between headaches and tinnitus. The clinician also reasoned that based on medical research and the clinician’s own medical experience, there is an association between headaches and psychological impairments and stress. In a November 2020 VA addendum opinion, the examiner found that the Veteran’s headache symptoms were at least as likely as not caused by or aggravated by his service-connected psychiatric disorders, tinnitus, and sleep apnea. In so finding, the examiner again noted that the Veteran’s headaches were not indicative of a separate and distinct headache disorder but rather a known complication of his service-connected disabilities. The examiner went on to say that the Veteran’s headaches were a residual of his disabilities and not a primary headache condition. In light of the above, the Board finds that the evidence for and against the claim is at least in equipoise as to whether the Veteran has a headache disability that is attributable to his service-connected disabilities. When the evidence for and against a claim is in relative equipoise, by law, the Board resolves all reasonable doubt in the Veteran’s favor. The Board emphasizes that this standard of proof is “unique” to the VA adjudicatory process in light of the fact that the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55. Therefore, the benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for headaches is granted. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.