Citation Nr: 21040328 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-08 386 DATE: July 3, 2021 ORDER The March 30, 2021 Board of Veterans' Appeals (Board) decision denying service connection for a headache disorder is vacated. Service connection for a headache disorder, claimed as secondary to service-connected disabilities, is granted. FINDINGS OF FACT 1. On March 30, 2021, the Board issued a decision which, in part, denied service connection for a headache disorder. 2. Prior to the March 30, 2021 Board decision, in March 8, 2021 correspondence, the Veteran's representative requested that the Board wait 90 days before issuing a decision. 3. The Veteran has a current diagnosis of a headache disorder which has been related to his service-connected disabilities CONCLUSIONS OF LAW 1. The criteria for vacating the March 30, 2021 Board decision with regard to the claim of entitlement to service connection for a headache disorder have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 2. The criteria for service connection for a headache disorder secondary to service-connected disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to May 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which denied service connection for a headache disorder. This case was previously before the Board in September 2018 at which time the headache issue was remanded for additional development. As was noted in the September 2018 Board remand, the headache issue was inextricably intertwined with another remanded claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Significantly, by rating decision dated in June 2020, the RO granted service connection for PTSD. In March 2021, the Board issued a decision which, in part, denied service connection for a headache disorder. In April 2021, the Veteran's representative filed a motion for reconsideration of the March 2021 Board decision pertaining to the headache issue. 1. The March 30, 2021 Board decision denying service connection for a headache disorder is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. The failure to allow the Veteran to present evidence, if requested, is an example of a circumstance where denial of due process of the law will be conceded. 38 C.F.R. § 20.904. In the case at hand, on March 30, 2021 the Board issued a decision which, in part, denied service connection for a headache disorder. However, on March 8, 2021, prior to the March 30, 2021 Board decision, the Veteran's representative requested that the Board wait 90 days before issuing a decision. The Board, however, issued a decision on March 30, 2021, as the request was associated with the claims file subsequent to the issuance of the Board decision. Following the March 2021 Board decision, in April 2021, the Veteran's attorney submitted a motion to vacate the March 2021 Board decision with respect to the headache issue. The attorney indicated that the Veteran was denied due process since he did not have an opportunity to provide evidence and prepare a brief prior to the Board decision. Evidence associated with the file since the March 2021 Board decision indicates that the attorney requested a 90-day extension in March 2021 correspondence and that, while the extension request was never ruled on by the Board, the request for an extension was in constructive possession of VA but not associated with the claims file until after the March 2021 Board decision. Therefore, in this case, in accordance to 38 C.F.R. § 20.904, the Board finds that the Veteran was denied due process when the Veteran did not have an opportunity to provide additional evidence and prepare a brief prior to the issuance of the Board decision. As such, the Board's March 2021 decision denying service connection for headaches must be vacated on these grounds. 2. Service connection for a headache disorder, claimed as secondary to service-connected disability, is granted. The Veteran seeks service connection for a headache disorder. Essentially, the Veteran contends that he experiences a headache disorder as a result of an in-service head injury, and/or secondary to a service-connected disability. Specifically, the Veteran contends that between October and November 1982, while stationed at Fort Sill, Oklahoma, he was awakened by several soldiers who placed a blanket over his head and pulled him out of bed, resulting in injuries to his head, teeth, and thumb. Significantly, the Veteran's service treatment records suggest that the incident described by the Veteran did occur as they show injuries to his teeth and right thumb in December 1982. As such, by rating decision dated in January 2020 the RO granted service connection for residuals of a right thumb injury and, by rating decision dated in June 2020, the RO granted service connection for PTSD. The Veteran has also contended that a headache disorder is secondary to and/or aggravated by his service-connected PTSD. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While service treatment records do confirm an in-service head injury, there are no complaints of or treatment regarding headaches. The Veteran submitted an initial claim for service connection for a headache disorder in April 2014. In connection with this claim, VA and private treatment records were obtained. Significantly, private treatment records dated as early as December 1985 are negative for complaints regarding headaches. The earliest post-service medical evidence of headaches is an August 2019 VA psychiatric examination report wherein the Veteran reported experiencing chronic headaches. The Veteran was afforded a VA headache examination in August 2020. Significantly, the examiner found that the Veteran did not currently have, nor had he ever been diagnosed with, a headache disorder. The examiner then opined that the Veteran's claimed headaches were less likely than not (less than 50 percent probability) proximately due to or the result of an in-service injury, event, or illness or a service-connected disability as there were no treatment records regarding headaches in the claims file. An addendum VA medical opinion was obtained in January 2021 which considers the, seemingly, inconsistent findings in the August 2020 VA headache examination report as to whether the Veteran currently had a diagnosable headache disorder. Significantly, the January 2021 VA examiner found that the Veteran did meet the criteria for the diagnosis of a headache disorder but, again, provided negative nexus opinions on both a direct and secondary basis. In support thereof, the January 2021 VA examiner wrote that there was no evidence of a headache disorder in service, including as associated with the claimed assault while in service. There was no evidence of care for a headache disorder proximate to service. There were very few records available for review, and the only mention of headache is on the initial PTSD exam, which noted "chronic headache," with no further explanation. These headaches were not characterized as to type, duration, or date of onset. The August 2020 VA examiner noted the absence of records pertaining to headache. There was conflicting evidence in the August 2020 VA headache examination. No diagnosis was specified; however, the examiner did note symptoms in section III on the examination report. It may be that the August 2020 examiner did not understand that the question in section I was for both current and/or prior headaches. Therefore, the January 2021 VA examiner found that it was clear that the Veteran did have a headache disorder, likely a migraine headache variant, based on the answers in section III. The headaches were pulsating, worsened with activity, and were associated with photophobia, phonophobia and visual changes. Though migraines are usually unilateral, they may be bilateral. Additionally, they worsen with activity, whereas tension headaches are not classically associated with that feature. It was unlikely that the Veteran could have gone a span of approximately 35 years without seeking care for a headache condition, especially migraines. Furthermore, given that the claim was due to an assault, it was highly unlikely to have gone unreported at that time. As such, no nexus was established in service as there was no care noted prior to approximately 2019. In summation, the January 2021 examiner determined that it was less likely than not that the Veteran's headache disorder had its origin in service or was due to the claimed assault in service. With regard to secondary service connection, the January 2021 examiner noted that, as migraine headaches are a vascular phenomenon, they are not caused or aggravated by PTSD. There is no physiologic or anatomic pathway by which they can do so. Furthermore, there was no evidence of aggravation beyond the natural course of migraines, due to any cause. There were no records supporting aggravation and the natural course of migraines was variable. Individuals may have rare, mild headaches up to, and including, clusters of severe headaches. Therefore, the January 2021 examiner found that it was less likely than not that the Veteran's headaches were aggravated due to any cause, including the Veteran's PTSD. According to the VA examiner, migraine headaches have various triggers, including stress/anxiety. There was no evidence to support that the Veteran's headaches have been aggravated by these psychological comorbidities. Furthermore, a trigger does not represent cause or aggravation. Therefore, it was less likely than not that the Veteran's headaches had been aggravated due to any cause, including the Veteran's PTSD and related psychological comorbidities. In summary, it was less likely than not that the Veteran's headaches had their nexus in service or due to the alleged assault. It was also less likely than not that the Veteran's headaches were due to PTSD and/or were aggravated due to any cause, including the Veteran's PTSD. Also of record is a March 2021 disability benefits questionnaire and accompanying medical opinion from Dr. M.B. Significantly, Dr. M.B. diagnosed the Veteran with tension headaches and opined that it was as likely as not that the Veteran's headaches were both caused by and aggravated by his service-connected PTSD and tinnitus. In support of this opinion, Dr. M.B. noted review of the Veteran's medical records showing significant PTSD and tinnitus symptoms as well as the Veteran's history of experiencing severe headache pain for the past 10 to 15 years. Dr. M.B. also submitted medical treatise evidence supporting a link between psychological stress and headaches. It was noted that there are multiple ways psychological stress and headaches are closely related. Stress can be a predisposing factor that contributes to headache disorder onset, accelerates the progression of the headache disorder into a chronic condition, and precipitates/exacerbates individual headache episodes. The headache experience, itself, can serve as a stressor that compromises an individual's health and well-being. During stressful events, such as exacerbations of PTSD symptoms, certain chemicals in the brain are released engaging what is commonly referred to as the flight or fight response which can cause vascular changes that can precipitate or exacerbate a headache. When the stressful event occurs, the amygdala an area of the brain that contributes to emotional processing sends a distress signal to the hypothalamus which communicates with the rest of the body through the autonomic nervous system which controls involuntary body functions such as breathing, blood pressure, heartbeat, and the dilation or constriction of key blood vessels and small airways in the lungs. Adrenal glands respond by pumping epinephrine into the bloodstream which increases heartbeat, pulse, and breathing and extra oxygen is sent to the brain. If the brain continues to perceive something as harmful, the hypothalamus releases hormones which travel to the adrenal glands prompting them to release Cortisol, so the body remains on high alert. These types of physical reactions often result in either tension or migraine headaches. Furthermore, in a study of 163 tinnitus clinic patients, the relationship between audiological, psychological, and psychosomatic factors was investigated. The study found that the frequency of headaches, which is a rather common complaint in patients with tinnitus, was strongly correlated with the severity of tinnitus. Upon review of the above evidence, the Board finds that service connection for a headache disorder is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of migraine and tension headaches. Furthermore, there is medical evidence that such disability is related to the Veteran's service-connected disabilities specifically the competent and credible March 2021 medical opinion from Dr. M.B. While the January 2021 VA examiner provided a negative nexus opinion, when weighing the opinion of the January 2021 VA examiner against the opinion of Dr. M.B. the Board will afford the Veteran the benefit of the doubt. Accordingly, the Board finds that the evidence of record is sufficient to find that the Veteran's headache disorder is related to his service-connected PTSD and tinnitus. Therefore, service connection for a headache disorder is warranted. Christopher Collins Acting 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.