Citation Nr: 21023489 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-23 359 DATE: April 20, 2021 ORDER Service connection for migraine headaches, to include as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's migraine headaches have been attributed to a known clinical diagnosis, did not have onset during active service or within one year of service discharge, and are not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria to establish service connection for migraine headaches, to include as due to undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1988 to April 1992. This matter was previously before the Board of Veterans' Appeals (Board) in January 2021 and remanded in compliance with an August 2020 joint motion for remand (JMR) filed by the parties before the Court of Appeals for Veterans Claims (Court) that vacated a July 2019 Board decision. The development was completed and the appeal is ready for appellate review. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including other organic diseases of the nervous system such as migraine headaches, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to establish entitlement to service connection. Id. Service connection may also be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1) (2016). Even where service connection cannot be presumed, service connection may still be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Regarding the competency of lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107(b). Service connection for migraine headaches, to include as due to an undiagnosed illness, is denied. The Veteran contends that his headache condition is related to his service, to include as due to an undiagnosed illness. However, the Veteran has been diagnosed with migraine headaches and the disorder is not therefore subject to service connection for an undiagnosed illness. The preponderance of the evidence is against the claim and the claim will be denied. A June 23, 1990, service treatment record (STR) contains a complaint of headache. However, a March 1992 in a report of medical history the Veteran completed prior to his discharge from active service, he denied then having, or ever having frequent or severe headache. Private treatment records indicate complaints of headaches in 2005, 2008, 2011, and 2012. A May 2013 letter from the Veteran's treating physician states that the Veteran has been diagnosed with headaches and has been under his care since 2005. A June 2013 VA examiner noted a diagnosis of migraine headaches dating back to 1997. However, the examiner did not provide an etiological opinion and did not adequately consider the in-service report of headache or the lay statements regarding continued headaches post-service. Therefore, as addressed in the January 2021 Board remand, the examination is inadequate. In a June 2013 lay statement, the Veteran’s sister reported witnessing the Veteran having severe headaches, which he did not have before his active service. In a June 2013 lay statement, a friend of the Veteran reported that the Veteran has had migraine headaches for the 13 years that she has known the Veteran. In an April 2016 lay statement, a co-worker reported witnessing the Veteran having headaches since 1992. In the April 2019 Board hearing, the Veteran stated that he began experiencing migraines approximately one-year after service. Pursuant to the January 2021 Board remand, a VA addendum opinion was provided in February 2021. The examiner noted that the Veteran’s records were reviewed, to include his VA e-folder and all lay statements. The examiner opined that the Veteran migraine headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the lay statements convey onset of the migraine headache condition during service, the STRs do not support the onset of the condition during service. The examiner stated that the June 23, 1990 STR shows a complaint of headache and stomachache. The examiner noted that the Veteran’s vital signs showed a temperature of 100.6, which was consistent with a low-grade fever, and the assessment was viral syndrome. However, the examiner explained that the headache complaint was acute only during service and related to a viral illness, which was supported by the complaint of stomach pain, nausea, and low-grade fever. The examiner also noted that in the March 1992 report of medical history, the Veteran marked “no” to the question of whether he then had or ever had frequent or severe headache. The examiner noted that the STRs do not show a chronic headache condition during service. The examiner further explained that while lay statements provide important information they do not, in and of themselves, provide evidence of a diagnosis. The examiner stated that migraine headache was diagnosed many years after service and is unrelated to the Veteran’s service. The preponderance of the evidence is against the claim. As noted, a June 1990 STR shows a single in-service complaint of headache. However, as discussed above, the February 2021 examiner explained that the June 1990 complaint of headaches was acute and associated with viral illness. The STRs do not show any other evidence of complaints or treatment for headaches, and the Veteran indicated in the March 1992 report of medical history at separation that he did not then have or ever had frequent or severe headache. The STRs are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). As noted above, the first documented treatment for migraine headaches post-service is in a private treatment record from 2005. Lay statements report that the Veteran has had headaches as early as 1992, and the Veteran has reported that he began experiencing migraines approximately one year after discharge from active duty. However, outside of the Veteran’s report and the lay statements of record, there is no other evidence that the Veteran had ongoing treatment for his headaches prior to 2005. This weighs against a finding that the Veteran's migraine headaches had onset during active service from April 1988 to April 1992, to include the June 1990 in-service complaint of headache that was associated with viral illness, or have been continuous therefrom. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As there is no probative evidence that the Veteran's current migraine headaches first manifested during active service or within one-year of service discharge, the regulations regarding presumptive service connection for chronic disease are inapplicable. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). There is otherwise no competent, probative evidence linking the Veteran’s diagnosis to his service. Instead, as discussed above, the February 2021 VA examiner explained that the singular complaint of headache in-service was acute and associated with viral illness. The lay evidence of record has been considered. However, the Veteran's lay statements asserting a relationship between his current migraine headaches and active service, to include as directly due to Gulf War exposure, are afforded little probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The preponderance of the evidence is against the Veteran's claim of entitlement to service connection for migraine headaches on direct and presumptive bases. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart The Board’s decision in this case is binding only with respect to this matter. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.