Citation Nr: 21022717 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-38 838 DATE: April 19, 2021 ORDER Entitlement to service connection for migraine headaches, secondary to the service-connected cervical and lumbar spine disabilities, is GRANTED. FINDING OF FACT The preponderance of the evidence favors a finding that the Veteran’s migraine headaches were aggravated beyond the natural progression by the service-connected cervical and lumbar spine disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a migraine headache disability have been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1972 to February 1974. Entitlement to service connection for migraine headaches, secondary to service-connected cervical and lumbar spine disabilities, is granted. In November 2009, correspondence from the Veteran was associated with the claims file. Thereby, the Veteran expressed a desire to reopen a claim for service connection for migraine headaches. The Board notes that the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for headaches in June 1974, November 2001, and May 2003. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-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 nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). Although VA indicated that the purpose of the regulation was merely to apply the Court’s 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place the burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA’s practice, which strongly suggests that the revision amounted to a substantive change in the regulation. Because the Veteran’s claim was received after the regulatory change, his claim will be adjudicated under the current version of the regulation. The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In April 2010, correspondence from the Veteran was associated with the claims file. Therein, the Veteran posited that, “side effects of medications for my lumbar spine pain were causing problems for me, including frequent incapacitating migraines . . ..” In March 2010, the Veteran’s private physician generated a letter. Therein, the provider relayed that, “(i)t is more likely than not that this scoliosis is a result of traumatic injury to the spine, including compression fracture of the L-1 vertebra . . . and may very likely have been the source of chest pain and shortness of breath noted in records after his spinal injury, as well as triggering headaches and/or migraines.” In August 2010, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured headaches. The VA examiner reported a current diagnosis for migraine headaches. The VA examiner opined that the Veteran’s migraine headaches were less likely than not caused by, or due to, the service-connected lumbar strain with degenerative disc disease (DDD). The VA examiner relayed that there is no medical literature which correlates migraine headaches with lumbar strain. In January 2011, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured headaches. The VA examiner opined that the Veteran’s migraine headaches were less likely than not caused by, or due to, the service-connected lumbar strain with DDD. The VA examiner relayed that there is no medical literature which correlates migraine headaches with lumbar strain. In August 2018, the Board considered the Veteran’s claim for service connection for migraine headaches. At that time, the Board found that new and material evidence had been received sufficient to reopen a previous final denial for service connection for migraine headaches. The Board found that the private March 2010 opinion was speculative in nature. The Board also found that the August 2010 and January 2011 VA examination reports were not adequate, because both examiners failed to offer opinions on direct service connection, did not adequately address the causation prong of secondary service connection (failed to address back pain medications as a potential cause), and did not address the aggravation prong of secondary service connection at all. The Board noted that no VA opinions had been rendered with respect to migraine headaches as secondary to a service-connected neck disability. In May 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured headaches. At that time, the VA examiner opined that it was less than likely the Veteran’s migraine headaches were related to service, caused by the service-connected cervical and lumbar spine disabilities, or aggravated beyond normal progression by the neck and lower back disabilities. In October 2020, the Board considered the Veteran’s claim for service connection for migraine headaches. At that time, the Board found that the May 2019 VA examiner did not discuss whether the Veteran’s migraine headaches were related to the pain medications prescribed to treat his service-connected neck and/or back disabilities. The Board remanded the claim to the AOJ to obtain an addendum VA opinion. In January 2021, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured headaches. The VA examiner reported a diagnosis for migraine headaches, to include migraine variants. The Veteran reported that he developed headaches around the same to he injured his neck and lower back in the U.S. Air Force. The VA examiner opined that it was less likely than not that the Veteran’s current migraine headaches were proximately due to, or the result of, the service-connected cervical and lumbar spine disabilities. Importantly, the VA examiner identified the baseline for the Veteran’s migraine headaches. The VA examiner opined that the current severity of the Veteran’s migraine headaches is greater than the baseline. The VA examiner opined that it was at least a likely as not (greater than 50 percent probability) that the Veteran’s migraine headaches were aggravated beyond the natural progression by the service-connected cervical and lumbar spine disabilities. The VA examiner noted that the Veteran’s medical records indicated that tension headaches accompanied neck and lower back pain. The VA examiner relayed that, “(t)ension headaches can be associated with chronic pain and appear to be aggravated by claimant’s chronic pain. Therefore, a nexus has been established.” The Board observes that the Veteran maintains a current diagnosis for migraine headaches. The Board notes that, throughout the claim period, the Veteran has been service connected for cervical and lumbar spine disabilities. Importantly, after identifying the baseline of the Veteran’s migraine headaches, the January 2021 VA examiner clearly relayed how the service-connected cervical and lumbar disabilities aggravated the headaches beyond the baseline. Ultimately, the preponderance of the evidence favors the Veteran’s claim for   secondary service connection for a migraine headache disability. Accordingly, this service-connection claim must be granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.