Citation Nr: 21026421 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-22 994 DATE: May 3, 2021 ORDER Service connection for headaches/migraines with fatigue is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has a diagnosis of a disability manifested by headaches/migraines with fatigue, symptoms of which have been present since the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for headaches/migraines with fatigue have been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2003 to April 2007, to include service in Southwest Asia from November 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board denied service connection for headaches/migraines with fatigue. The Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued a memorandum decision which vacating the Board's October 2018 decision and remanded the matter for readjudication. In October 2020, the Board remanded the claim for action pursuant to the March 2020 memorandum decision. Service connection for headaches/migraines with fatigue is granted. The Veteran claims that he experiences headaches/migraines with fatigue that are due to his military service. Initially, in July 2012 correspondence, the Veteran wrote that he experienced several blows to the head during his military service due to his height (vehicles, doorways, combatives, etc.) Thereafter, in January 2013 correspondence, the Veteran wrote that his headaches are related to radiation exposure in service. Specifically, he noted that he was exposed to microwave and radiofrequency radiation six days a week while in service. Subsequently, in July 2013 correspondence, the Veteran wrote that his headache/migraine symptoms fall under the list of presumptive illness due to his service in Southwest Asia during the Persian Gulf War. Most recently, in November 2019 correspondence, the Veteran wrote that his migraine headaches are secondary to his service-connected irritable bowel syndrome (IBS). Specifically, he indicated that his IBS causes him to experience constipation, stomach pain, and migraine headaches before every IBS episode, approximately twice per month. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Certain chronic diseases, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Service connection may be established for a qualifying chronic disability manifested by certain signs or symptoms which became manifest either 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, 2021, 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). A "qualifying chronic disability" includes: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. Analysis Initially, the Veteran's personnel and service treatment records verify that he has qualifying active service in the Southwest Asia theater of operations during the Persian Gulf War. As such, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 apply in this case. Service treatment records show occasional complaints of headaches during the Veteran's military service. Specifically, an April 2003 record shows complaints of a headache over the last several hours. A December 2004 record shows complaints of migraine symptoms and the physician noted increased stress and directed the Veteran to drink plenty of fluids. Also, a March 2005 record shows complaints of a headache among other symptoms with a diagnosis of viral syndrome and mild dehydration. The Veteran's separation examination is not of record. Post-service records are negative for complaints of headaches until the Veteran's July 2012 claim for service connection. Significantly, at the time of the Veteran's claim, the Veteran wrote that his headaches get so unbearable at times that he cringes up. The Veteran has been afforded several VA examinations and several medical opinions have been obtained in this case. Specifically, a July 2013 VA headache examination shows that the Veteran had been diagnosed with a headache condition, but also shows that the headaches were of an "unknown type." Significantly, the July 2013 VA examiner noted that the Veteran's headache condition began in 2006 (during the Veteran's military service) with an unknown cause but then opined that the Veteran's condition was less likely than not incurred in service as there were no records of a chronic headache condition in service. In March 2016, the Veteran underwent a Gulf War general medical examination, including a headache and migraine examination. The examiner diagnosed the Veteran with "migraine, including migraine variants" with a date of diagnosis of 2016. Unfortunately, the examiner also noted that the Veteran's VA claims file was not reviewed in connection with the claim and that the examiner had only reviewed service treatment records and VA treatment records. The examiner then opined that the Veteran's migraine headaches were less likely than not related to any type of exposure during service in the Gulf War. There was no reference to the July 2013 examination in the March 2016 examination or opinion. Pursuant to the October 2020 Board remand, the Veteran was afforded additional VA examinations in February 2021. Significantly, a February 2021 VA headaches examiner diagnosed both "migraine, including migraine variants" as well as "tension" headaches, noting an onset in 2021. The February 2021 VA examiner also provided a negative nexus opinion based, primarily, on the lack of a chronic headache condition in service. The examiner then addressed the discrepancy in headache diagnoses between the July 2013 and March 2016 VA examination reports as was requested in the October 2020 Board remand by stating that the Veteran's headaches likely increased in severity between the July 2013 and March 2016 VA examinations. Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for headaches/migraines with fatigue is warranted. As an initial matter, the Board notes that there are complaints of headaches during the Veteran's military service and there is a current diagnosis of a disability manifested by headaches/migraines with fatigue. There are also competent allegations of continuity of headaches. Significantly, the Veteran is competent to provide lay testimony regarding headaches he experienced during and immediately following service. The only matter still in question is whether there is a medical link between the Veteran's claimed headaches and his military service. In this case, the record contains one quasi-positive nexus opinion and two negative nexus opinions. However, none of these opinions are adequate. First, while the July 2013 VA examiner found that the Veteran's headache condition began in 2006 (during the Veteran's military service), the examiner also opined that the Veteran's condition was less likely than not incurred in service. Such findings are contradictory to one another. Furthermore, the March 2016 and February 2021 VA examiners failed to reflect an accurate history of the Veteran's headaches. Significantly, the March 2016 and February 2021 VA examiners noted an onset of the Veteran's headache disability as 2016 and 2021, respectively, which is factually inaccurate as there is medical evidence of a chronic headache disability as early as 2012. Furthermore, the March 2016 and February 2021 opinions fail to consider the competent allegations of continuity of headaches from the Veteran since military service. Finally, none of these opinions address the theory of secondary service connection. At this time, the Board declines to remand for an additional opinion as such would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not necessary. Indeed, obtaining such additional evidentiary development in this instance would only result in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). As such, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran's headaches/migraines with fatigue began during his military service. Therefore, service connection for headaches/migraines with fatigue is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.