Citation Nr: 22012294 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-47 864 DATE: March 3, 2022 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's migraine headaches are etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to April 1986. The Veteran died in November 2019. The Veteran's surviving spouse was substituted as the Appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. In December 2021, the Appellant was notified that the VLJ who conducted the Veteran's hearing was no longer available and she was informed of her right to a new hearing. In January 2022, the Appellant indicated that she did not wish to appear at another Board hearing before a different VLJ. The transcript of the Veteran's May 2019 hearing is of record. In October 2019, the Board, in pertinent part, denied entitlement to service connection for migraine headaches. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2021 Memorandum Decision, the CAVC vacated the Board's decision to deny entitlement to service connection for migraine headaches, finding that the Board failed to provide an adequate statement of reasons or bases for finding that the Veteran's migraine headaches clearly and unmistakably preexisted service. Specifically, the CAVC noted that although it is undisputed that the Veteran reported suffering from headaches before service, there is no indication that these headaches were migraine headaches. Therefore, the CAVC concluded that remand was warranted for the Board to provide an adequate statement of reasons or bases for its presumption-of-soundness determinations. Entitlement to service connection for migraine headaches is granted. Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran will be considered to have been in sound condition when examined accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b). The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all the other evidence in question as to the commencement of the injury or disease. 38 C.F.R. § 3.304(b)(1). The Veteran seeks service connection for migraine headaches, asserting that they resulted from his time on active duty due to working shift hours as a medical specialist. More specifically, at his Board hearing, the Veteran testified that his headaches began during service, approximately in 1985, after working shift-work for two years at the Walter Reed Medical Center. The Veteran's enlistment examination report reflects normal findings relevant to the claimed migraines. While the Veteran himself reported frequent or severe headaches, such personal reporting is not sufficient to overcome the presumption of soundness. 38 U.S.C. § 1111. Given that the claimed migraine headaches were not noted in the Veteran's enlistment examination report, the presumption of soundness attaches, which may be rebutted only by clear and unmistakable evidence (i.e., undebatable evidence) that the Veteran's migraines were pre-existing and were not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38C.F.R. § 3.304(b). A January 1985 service treatment records (STR) notes complaints of frontal headache pain, which he admitted to having in the past but not as severe as this one. The impression notes muscle tension headache. However, a subsequent January 1985 STR reflects that the Veteran was seen by neurology and diagnosed with "common migraine" based on the same reported symptoms. STRs dated in September 1985 and November 1985 also note complaints and treatment for throbbing headaches and migraine headaches. His March 1986 separation examination is silent for any notation regarding migraine headaches; however, his associated March 1986 Report of Medical History notes bilateral migraine headaches. Post-service treatment records reflect complaints and treatment for migraine headaches as early as June 2012. A February 2014 medical treatment record notes that the Veteran reported that he had migraine headaches during active service. The Veteran was afforded a VA examination in June 2014, which notes a diagnosis of chronic headaches. The Veteran reported that he developed headaches during military service and that he treated himself with over the counter medications. He also indicated that he worked as an ENT technician at Walter Reed Hospital during service and the doctor would just give him medications for headaches; he noted that he was evaluated by a neurologist at Walter Reed Hospital and was prescribed Midrin. Since separating from service, he indicated that he self-treated his headaches with over the counter medications. The examiner noted review of the Veteran's claims file, including his lay statements, STRs, and post-service treatment records, and opined that the Veteran's current migraine headaches were not at least as likely as not caused by military service because his headaches pre-existed his military service. The examiner appears to have based this opinion on the notations in the Veteran's STRs noting his reports of a history of headache pain prior to service. The examiner further opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. At his May 2019 Board hearing, the Veteran testified that his military occupational specialty was that of a medical specialist. In addition to his statements above, the Veteran indicated that he sought medical treatment from a neurologist for his headaches in approximately May 1986, approximately one month after his separation from service; however, given that he was a medical specialist, he treated himself with over the counter medications after that until approximately 2012 when his treatment became ineffective. In May 2019, the Veteran submitted a letter from his current treating VA neurologist as further evidence to be considered in support of his claim. While the Board has considered this record as evidence, it is of little probative value to the Veteran's claim. The letter merely indicates that the Veteran suffers from "longstanding migraines" which occur "about two times per week." The letter does not provide an etiology opinion. As an initial matter, although the evidence suggests that the Veteran may have experienced some headache symptoms prior to service, as noted above, the presumption of soundness is applicable in this case. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Specifically, despite the Veteran's medical treatment records suggesting that the Veteran reported experiencing headache symptoms prior to his active service, his entrance examination does not note any migraine headache disorder, and his lay reports alone are insufficient to rebut the presumption of soundness by the high evidentiary burden of clear and unmistakable evidence that his migraine headache disorder pre-existed service. The Board acknowledges the June 2014 VA examiner's opinion that the Veteran's migraines pre-dated his active service; however, as this opinion appears to be based solely on the Veteran's reports at service enlistment that he had frequent or severe headaches prior to service, the Board finds that this rationale is not sufficient to rebut the presumption of soundness. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran's migraine headaches were directly related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the record reflects that the Veteran has received a diagnosis of and treatment for migraine headaches. Therefore, the first element of service connection, a current disability, is met. Regarding an in-service event, illness, or injury, the Veteran consistently reported migraine headache symptoms beginning during his period of active service, and STRs reflect a diagnosis of migraines from a neurologist in service. Finally, the evidence of record plausibly suggests a nexus between the Veteran's migraine headaches and military service. Specifically, the Veteran indicated that since separation from service, he experienced ongoing migraine headache symptoms which he treated himself with over the counter medications until 2012, at which time he sought treatment from VA. Given the nature of headaches, the Veteran is uniquely situated to competently identify and report on its onset and duration. Furthermore, the record reflects that the Veteran received some medical training after his service enlistment. Therefore, the Board finds his assertion that the migraine headaches began while in service and have continued since service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. Therefore, resolving reasonable doubt in the Appellant's favor, service connection for the Veteran's migraine headache disorder is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.