Citation Nr: 22016352 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-24 449 DATE: March 22, 2022 ORDER Entitlement to service connection for migraine headaches is denied. FINDING OF FACT The most persuasive evidence of record is against a finding that the Veteran's current migraine headaches had their onset in active service or first manifested within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2005 to September 2005 and from November 2007 to December 2008. He also had periods of Reserve service in the National Guard. This matter arose to the Board of Veterans' Appeals (Board) from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the appeal to the RO for evidentiary development. The Board included directives regarding a claim for service connection for a back disability. In a July 2020 rating decision, the RO granted service connection for that disability. As such, that issue is no longer before the Board. In August 2021, the Board again remanded the issue on appeal for evidentiary development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2021). In its August 2021 remand, the Board directed the RO to obtain a VA medical opinion addressing the medical evidence and the Veteran's contentions regarding his migraine headaches. A responsive opinion was provided in September 2021 which substantially complied with prior remand directives. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. The Veteran has not raised any other issues pertaining to the duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for migraine headaches The Veteran contends he is entitled to service connection for migraine headaches, that he claims developed following his deployment. For the following reasons, the Board finds service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). As to the "current disability" element, the record shows the Veteran has been diagnosed (most recently at a September 2021 VA Compensation and Pension (C&P) examination) with migraine headaches during the pendency of the appeal. The first prong of his service connection claim has therefore been met. See 38 C.F.R. § 3.303(a). As to the "in-service incurrence" and "nexus" elements, the Veteran's service treatment records do not reflect a diagnosis of migraines at any point during his period of active service. However, September 2007 and January 2008 pre-deployment health assessments were negative for headaches. In September 2008, the Veteran was treated following an episode of heat exhaustion with dehydration and headaches; these symptoms were noted to be resolved with IV fluids. The Veteran's November 2008 post-deployment questionnaire is negative for headaches. In support of his claim, the Veteran has submitted an opinion from a private care provider, dated in January 2017, stating the Veteran's headaches were more than likely caused by his prior military service. The examiner noted the Veteran would carry heavy backpacks, his ruck sack, his vest, and equipment, the weight of which would cause neck and back pain. Beyond this, however, the examiner did not offer a detailed rationale as to how carrying heavy equipment would result in headaches. The Veteran has also offered lay statements to the effect that he first developed recurring headaches following his return from deployment. The Veteran was first afforded a VA C&P examination in December 2019. However, the examination and accompanying negative nexus opinion were deemed inadequate, as explained by the Board in prior remands. He was afforded a second C&P examination in September 2021, which also yielded a negative nexus opinion. In a lengthy rationale, the examiner noted the only objective evidence of headaches was the September 2008 treatment note indicating headaches in conjunction with dehydration. The examiner explained there was no finding of migraines at that time, and furthermore the headaches resolved with IV fluids, which indicated that the headache was a symptom of dehydration rather than a stand-alone diagnosis of headaches. Moreover, the headache was described as being of acute onset, and the Veteran did not report a history of headaches or chronicity of headaches. The examiner further noted that on the November 2008 post-deployment assessment the Veteran marked "no" to bad headaches and denied any medical issues. The examiner acknowledged the Veteran's reports of headache symptoms since his deployment, but noted that he had numerous opportunities to report his symptoms in screenings and report of health conditions, some of which specifically asked whether he had headaches, and declined to do so. The examiner further discussed the January 2017 positive nexus opinion, noting the opinion included no indications of treatment of neurology evaluation or indication that the Veteran was treated for headaches starting within one year of his separation. The examiner concluded, given all of this evidence, that the Veteran did not have a migraine headache condition that began in service. His headache reported in September 2008 was a symptom of dehydration and was resolved with IV hydration. The examiner considered the Veteran's statement reporting treatment in service by a medic; these statements were not more persuasive than the negative evidence given the Veteran's lack of reports of headaches subsequently. The examiner further found there was no evidence to support incurrence within one year of separation, in light of the evidence above. After carefully reviewing the record, the Board finds the most persuasive evidence of record, the September 2021 VA C&P opinion, is against the Veteran's claim for service connection for migraine headaches. As noted above, the Board acknowledges the Veteran's reports of headaches since service. Likewise, the Board accepts that the Veteran was treated for headache and dehydration in September 2008. As the VA examiner explained, however, it is more likely the Veteran's in-service headache was acute (i.e., due to dehydration) and resolved with IV fluidsparticularly given his subsequent denials of headache symptoms. Moreover, the Veteran's lay assertions that his headaches started in service were undermined by the many occasions in which he denied headaches or failed to report them, despite in some cases being explicitly asked if he had headaches. In sum, the extremely detailed and logical September 2021 VA C&P opinion, which found, essentially, that there was insufficient persuasive evidence of record to conclude the Veteran's current migraine headaches were incurred in active service or is otherwise related to active service, is by far the most persuasive evidence of record. The Board notes there are conflicting medical opinions of record, namely the positive opinion provided by the Veteran's care provider and the September 2021 VA C&P opinion discussed above. (The Board is disregarding the prior VA negative nexus opinion as it has been deemed inadequate.) Of these, the September 2021 VA opinion is clearly the more persuasive. That opinion accurately characterized the Veteran's service treatment records, relevant post-service medical records, the positive private medical opinion, and the Veteran's lay contentions regarding the onset and history of his symptoms. The positive private opinion, by contrast, is essentially a conclusory statement of nexus, insufficient to establish a basis for service connection. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board notes that, even accepting the Veteran's descriptions of his symptomatology, the evidence does not demonstrate onset of his currently diagnosed headache condition in service or within one year of separation from service. The September 2021 VA C&P examiner's negative nexus opinion is based on a detailed and factually accurate analysis of the Veteran's symptoms, lay statements, and relevant medical literature. By contrast, the private opinion noted the Veteran's lay contentions but made no attempt to analyze his contentions in the context of the other pertinent evidence, to include his service treatment records which were negative for headaches apart from the single acute episode in September 2008. The Board acknowledges the Veteran's lay assertions of entitlement to service connection, to include his reports of in-service headaches. The Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by a medical professional. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as was explained by the September 2021 C&P examiner, the Veteran own denials of headache symptoms in service undermines his lay contentions in favor of his claim. Likewise, the question of whether his current migraine headaches were incurred in service, manifested within one year of service, or is otherwise related to service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007). (The Veteran is competent to report headache symptoms, but not necessarily competent to report that the headaches he experiences currently are part of the same condition as what he experienced in service.) In short, because the evidence does not indicate the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his current migraine headaches, he is not competent to establish a medical link between current and in-service symptoms. Moreover, the record contains a determination by a medical professional that the Veteran's current migraine headaches are not related to service. This opinion (the September 2021 VA C&P opinion discussed above) included an acknowledgement of the Veteran's specific statements regarding the nature of his headaches; the examiner essentially acknowledged the Veteran's statements regarding in-service headaches but found there was insufficient evidence to relate those symptoms to his current migraine headaches. In short, the opinion appears well-reasoned, fact-based, and responsive to the Veteran's specific contentions, and is therefore considered extremely persuasive. The Board has considered the private care provider's positive nexus opinion but considers it less persuasive as it did not include a substantive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinions are regarded as more probative when they include clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). The Veteran has not rebutted the September 2021 VA C&P examiner's opinion. Indeed, he has provided no persuasive evidence since calling its findings into question. Unfortunately, the Veteran has not put forth sufficient competent evidence to warrant a grant of service connection in this matter. He is not competent to substantiate a link between his in-service symptoms and his current migraine headaches, and the remaining credible evidence in support of his claim is not found to be as persuasive as the negative evidence of record. To reiterate, the Veteran has credibly reported in-service headaches; however, these symptoms were determined by a VA medical professional to be unrelated to the Veteran's current diagnosis. Moreover, there is no persuasive evidence to suggest that migraine headaches developed within one year of the Veteran's separation from service, nor is there is persuasive evidence, particularly in light of the September 2021 VA C&P examiner's opinion, of continuous symptoms indicating organic disease of the nervous system since service. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. As such, the Board finds the evidence is against finding in favor of service connection. As a final matter, the Board notes that for Persian Gulf War veterans, service connection for chronic, undiagnosed illnesses (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Persian Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Headaches can be a sign or symptom of such; however, the Veteran's migraine headaches are a diagnosed condition, and the Veteran has not alleged his symptoms stemmed from exposures in Southwest Asia. For the reasons stated above, service connection for migraine headaches must be denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.