Citation Nr: 21029362 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-30 979 DATE: May 13, 2021 ORDER Service connection for headaches is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran's current headaches began during service and have continued since that time. CONCLUSION OF LAW The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from March 1993 to December 1995 and from October 2003 to October 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in Wichita, Kansas in May 2019; a transcript of that hearing is of record. In August 2019, the Board subsequently remanded this matter. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided an examination. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for headaches The Veteran asserts service connection for headaches. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of migraine-headaches, and that the evidence is at least in equipoise that they are related to his active duty. 38 U.S.C. §§ 1110, 5107(b). The Veteran has a diagnosis of migraine-headaches to include as reported at the February 2020 examination. As such, the first element of service connection is met. His service treatment records show frequent and severe headaches. See 11/19/2004, STR Medical Headaches. He testified at the Board hearing that his headaches began during service, continued through his second period of service, and have remained since that time. Concerning the May 2014 examination, the Board finds it has little probative value as the examiner reported the Veteran did not have a diagnosis of headaches and used that as the basis to provide a negative nexus opinion. The February 2020 provided a negative nexus opinion. However, the examiner noted that it was unclear the etiology. The examiner stated that his service treatment records reported frequent and severe headaches. Also, the examiner explained that the etiologies (from service or due to service-connected disabilities) were in conflict and it was unclear whether they were due to service. Additionally, the examiner acknowledged chronicity of care, but could not definitively state whether his headaches were due to service. Furthermore, the examiner reported that his headaches may have started during service, but it was unclear if he had follow-up care. The Board acknowledges that the examiner provided a negative nexus for direct service connection. However, the Board views the opinion as tending to show that his headaches began during service and continued since that time. In this regard, the examiner reported that he had frequent and severe headaches in service and had chronicity of care. Yet, the examiner could not definitively report that his headaches began during service. In this regard, the Board believes the examiner was applying a higher standard than "at least as likely as not." As such, the Board finds this opinion to have probative value as to a positive nexus. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his headaches began in service and have continued since that time. The Board acknowledges the negative opinions. However, the Board has found that the 2014 opinion has little probative value as it found the Veteran did not have a diagnosis of headaches and relied on that basis to provide a negative nexus. Additionally, the Board has found the negative February 2020 direct service connection to have positive probative value as the examiner notes the Veteran's headaches in service, and his chronicity of care, but appears to apply a higher standard ("definitively") than "at least as likely as not." As such, the Board finds the evidence to be at least in equipoise that the Veteran's headaches began during service and have continued since that time. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds that the evidence is at least in equipoise that the Veteran's headaches began during active duty and have continued since that time. Therefore, service connection for headaches is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, Associate 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.