Citation Nr: A21002562 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 200402-75734 DATE: February 2, 2021 ORDER Entitlement to service connection for migraine headaches to include as secondary to tinnitus is granted. FINDING OF FACT There is at least an equal balance of competent and credible evidence that the Veteran’s current migraine headache disability was caused or aggravated by service connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches to include as secondary to tinnitus have been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310, 3.150, 3.159,20.301 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 2012 to March 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for migraine headaches to include as secondary to tinnitus. In April 2020, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and elected Direct Review of the March 2020 rating decision which found no clear and unmistakable error in a prior rating decision; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board will construe the VA Form 10182 liberally and taken in combination with the HLR informal conference worksheet, identified the issue with which the Veteran disagreed as entitlement to service connection for migraine headaches to include as secondary to tinnitus. See 38 C.F.R. § 20.200. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service connected disease or injury, 38 C.F.R. § 3.310(a) or (2) aggravated by an already service connected disease or injury, 38 C.F.R. § 3.310(b). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for migraine headaches to include as secondary to tinnitus The Veteran asserts that service connection for migraine headaches is warranted. Service treatment records show that the Veteran reported headaches coincident with treatment for either gastrointestinal or respiratory infections in 2012, 2014 and 2016. In a December 2016 discharge examination, a clinician note no reported headaches and the Veteran denied a history of frequent or severe headaches. In a March 2017 VA audiometric examination, the Veteran reported the onset of tinnitus in August 2015 while working on the flight line as an aircraft mechanic that continued since that time. He did not mention headaches. In April 2017, the RO granted service connection for tinnitus. In March 2018, the Veteran submitted a claim for migraine headaches. See VA 21-526EZ, March 2018. A March 2018 rating decision denied the claim noting no inservice complaints, treatment, or diagnosis; current diagnosed disability; or diagnosis within one year of discharge. In October 2018, the Veteran submitted VA Form 21-0966 (intent to file a claim for compensation or pension). In November 2018, the Veteran submitted a claim for service connection for chronic migraine headaches secondary to service connected tinnitus. See VA 21-526EZ, November 2018. In a November 2018, VA physician Dr. S.M. noted that she was a treating physician and opined that the Veteran’s migraines “are more likely than not being caused by the ongoing tinnitus.” See Medical Treatment Record-Government Facility, November 2018. In December 2018, the Veteran was afforded a VA examination. The VA nurse practitioner opined that it was at least as likely as not that the Veteran’s headaches are a result of his tinnitus, agreeing with and based on Dr. S.M.’s opinion. See C&P Exam, December 2018. The Veteran’s diagnosis was noted as migraine headaches. During the examination, the Veteran reported that the onset of the symptoms began in 2016 while working in the aircraft repair shop shortly after the onset of tinnitus. The Veteran reported that he takes medication for the migraines. The examiner indicated that the Veteran experiences constant pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsens with physical activity, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran report that the migraines last less than 1 day. The examiner indicated that the Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Veteran reported that he did not work on severe headache days, which is about one per week over the past several months. In March 2019, an addendum opinion was obtained from a different VA internal medicine physician. See C&P Exam, March 2019. The examiner noted a review of the file, did not examine the Veteran, but opined that the claimed condition is at least as likely as not proximately due to or the result of the Veteran’s service connected condition because “tinnitus has been associated with recurrent migraines.” The examiner cited a medical article which noted, “the more frequent occurrence of further comorbidities suggests a generally increased amplification of sensory signals in a subset of tinnitus patients with comorbid headaches.” As such, the examiner noted that the Veteran’s service connected tinnitus can be seen as triggering recurrent headaches. A March 2019 rating decision denied service connection for migraine headaches based on the determination that although the evidence was new, it was not relevant evidence. Nevertheless, the RO considered this new evidence that was relevant because it tended to support the claim for service connection on a secondary basis. On the merits, the RO did reconsider the claim but found the medical opinions of record to be inadequate; erroneously finding that it did not disprove a matter at issue within the claim. In August 2019, Dr. S.M. referred the Veteran for a consultation with a neurology clinic for the purposes of obtaining a detailed examination and “nexus letter” to document that his migraine headaches and tinnitus were caused by noise exposure in service. A clinician in the neurology clinic noted that the clinic was available for migraine treatment but not for a letter as “there would be no clear way to document with surety that the migraines were secondary to the noise.” However, the Board finds that the March 2019 addendum opinion was adequate for rating purposes and is considered to prove the matter of migraine headaches secondary to service-connected tinnitus. The December 2018 examination report contained the Veteran lay statements regarding onset migraines following the onset of tinnitus; and the intensity and duration of the migraines. The March 2019 examiner indicated that he review the available records, which included the December 2018 examination report. In October 2019, the Veteran requested a higher-level review of his claim and requested an informal conference. See VA Form 20-0996, October 2019. The December 2019 HLR informal conference worksheet reflects that the Veteran asserted that the RO committed a duty to assist error as they requested an opinion, however, no opinion was received prior to the March 2019 rating decision. A December 2019 rating decision denied service connection for migraine headaches to include as secondary to tinnitus. In January 2020, the Veteran alleged clear and unmistakable error (CUE) in the December 2019 rating decision. However, since this issue represents an appeal of the rating decision that initially denied service connection, there is no final rating decision that is subject to a collateral claim of clear and unmistakable error. In February 2020, the Veteran was afforded another VA headache examination. See C&P Exam, February 2020. A VA contract general practice physician indicated that the Veteran was diagnosed with migraines in 2020. However, the Veteran’s diagnosis of migraines was noted on the 2018 VA opinions. During the examination, the Veteran reported that the both tinnitus and headaches had the onset in 2016. The Veteran stated that he did not report headaches while in service. The Veteran reported that his tinnitus is constant, and his headaches were present about four times a month. The February 2020 medical opinion report reflects that the examiner conducted a telephone interview. See C&P Exam, February 2020. The examiner opined that the claimed condition is at least as likely as not proximately due to or the result of the Veteran’s service connected condition based on the opinion of the treating physician Dr. S.M. A March 2020 rating decision found no revision was warranted in the decision to deny compensation for migraine headaches. In April 2020, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), requesting direct review of the March 2020 rating decision; noting that he has provided four positive nexus opinions, and that he filed his claim within one year of discharge. See VA 10182, April 2020. As previously noted, since this issue represents an appeal of the rating decision that initially denied service connection, there is no final rating decision that is subject to a collateral claim of clear and unmistakable error. After review of all of the evidence, the Board finds that service connection for migraines secondary to service-connected tinnitus is warranted. The Veteran has been diagnosed and treated for migraine headaches and thus has a current disability. He has been granted service connection for tinnitus caused by noise exposure in service. There is evidence both for and against whether the headaches began in service and were caused by noise exposure or caused or aggravated by tinnitus. The Veteran reported the onset of migraines in 2016 but the service treatment records showed only occasional non-migraine headaches coincident with infections. The Veteran specifically denied any headaches and none were noted on the December 2016 discharge examination. He also later reported that they began after but within one year of discharge but did not report them during the March 2017 tinnitus examination. The Veteran’s attending physician, Dr. S.M. provided a positive opinion that the migraines were caused by tinnitus but did not address the inconsistencies of onset in service. The 2018 nurse practitioner only concurred with Dr. S.M.’s opinion. The opinion was supported by the March 2019 internal medicine physician with a citation to a medical article that indicated that tinnitus could cause migraines, but again only concurred with the attending physician. Likewise the February 2020 physician also relied on the opinion of the attending physician. On the other hand, the VA neurology clinic representative declined to offer a letter opinion and found that he or she could not support migraines caused by noise but did not address causation or aggravation by tinnitus. Although four different VA or contract providers have provided positive nexus opinions that the migraines were caused by tinnitus, the attending physician based the opinion on examination but did not comment on the history in the service treatment records. One other supported the original opinion with a reference to a medical article, and the other two simply deferred to the treating physician’s opinion. The clinician from the neurology clinic was unable to support the theory of causation or aggravation. Therefore, the Board finds that the evidence above was new and relevant and will consider the claim on the merits. The Board finds that there is at least an equal balance of evidence in favor of causation of headaches by tinnitus in this case. As the criteria for service connection for migraine headaches to include as secondary to tinnitus have been met, the claim is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.