Citation Nr: 21029409 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-15 381 DATE: May 13, 2021 ORDER Service connection for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of migraine headaches. 2. The migraine headaches clearly and unmistakably preexisted entry into active duty. 3. The Veteran had symptoms and a diagnosis of migraine headaches during service. 4. It is not clear and unmistakable that the preexisting migraine headaches did not worsen in severity during service. 5. The current migraine headaches are related to those that occurred during service. CONCLUSION OF LAW 1. The Veteran's migraine headaches clearly and unmistakably existed prior to service. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. It is not clear and unmistakable that the migraine headaches did not worsen in severity during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for direct service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from April 1968 to October 1969. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for migraine headaches. The instant case has been before the Board of Veterans' Appeals (Board) previously. In February 2019, the Board remanded the issue of service connection for migraine headaches for an additional VA opinion. The opinion has been procured and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2019). As the instant decision grants service connection for migraine headaches, no further discussion of VA's duties to notify and assist is necessary. Service Connection for Migraine Headaches is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. At the outset, the Board notes that the Veteran is currently diagnosed with a migraine headache disability. See, e.g., October 2019 VA Headache Examination. The present disability requirement has been met. The February 2019 Board remand considered the evidence and concluded that 1) there was clear and unmistakable evidence that the migraine headaches preexisted service and 2) there was not clear and unmistakable evidence that the migraine headaches were not aggravated (worsened in severity beyond a natural progression) by service. Accordingly, because there was not clear and unmistakable evidence on both parts of the analysis, the presumption of soundness is not rebutted, and the case converted to one for direct service connection. See 38 U.S.C. § 1111; 38 C.F.R. §§ 3.303(d), 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). After reviewing all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the current headaches are the same as those in service. Concerning the in-service incurrence, the Veteran was diagnosed and treated for migraines in July 1968, reporting a history of migraines that had been bothering her since April 1968, sustained a head injury in service in 1969, and experienced headaches after that incident. The evidence shows migraines during service, after service, and a current disability now. The same diagnosis of migraine headaches the Veteran now has was diagnosed during service. There is no suggestion of an intervening post-service injury or disease to suggest the same migraines diagnosed in service are not the migraines currently diagnosed. The Board notes there is a negative nexus opinion of record; however, that purported opinion is of no probative value because it was based on inaccurate factual assumption of one week of service in 1968, was addressing an aggravation question rather than direct service connection and relying on evidence of preexistence of migraines that was not permissible in light of the Board's finding of fact that the presumption of soundness had not been rebutted, and used the wrong legal standard (clear and unmistakable evidence) to express a rationale. Resolving reasonable doubt in favor of the Veteran, the Board finds that the current migraine headaches were incurred in active service, so the appeal for service connection will be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.