Citation Nr: 23045501 Decision Date: 08/16/23 Archive Date: 08/16/23 DOCKET NO. 16-43 176 DATE: August 16, 2023 ORDER Entitlement to service connection for migraine headaches is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the currently diagnosed migraine headaches had their onset during active service. CONCLUSION OF LAW The criteria to establish service connection for migraine headaches are met. 38?U.S.C. §§?1110, 5107; 38?C.F.R. §§?3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2001 to May 2006 with the United States Navy, and from May 2006 to August 2013 with the United States Army. By way of history, VA received the Veteran's original claim for service connection for a headache disability in September 2013, within a month of his discharge from active-duty service. The claim was denied by a March 2014 rating decision, finding no evidence of a current diagnosis. The Veteran timely appealed the decision in April 2014, a statement of the case was issued in July 2016, and the Veteran timely perfected his appeal in August 2016. In August 2019 and August 2021, the Board remanded the appeal for further development. Thereafter, in a February 2022 decision, the Board denied the claim. The Veteran timely appealed the February 2022 Board decision to the United States Court of Appeals for Veterans Claims (Court), which by an August 2022 Order, granted a Joint Motion for Remand (JMR) that vacated and remanded the case back to the Board. Specifically, the JMR found that the Board erred in not ensuring compliance with prior remand directives that asked the examiner to address the Veteran's lay reports. In January 2023, the Board remanded the appeal to obtain an addendum medical opinion. For reasons unclear to the Board, the examiner decided that a physical examination was necessary, to which the Veteran failed to report. Nonetheless, given the Board's decision herein, granting service connection for migraine headaches, there is no prejudice to the Veteran in not obtaining an addendum opinion. Service Connection for Migraine Headaches Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.? 38?U.S.C. §§?1110, 1131; 38?C.F.R. §?3.303(a).? Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.? 38?C.F.R. §?3.303(d).?? Establishing service connection generally requires competent evidence of three things: (1) 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.? Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).?? The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki,?24?Vet. App.?428, 433?(2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki,?700 F.3d 1339?(Fed. Cir. 2012); Kahana,?24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki,?573 F.3d 1282, 1287?(Fed. Cir. 2009). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.? 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102.? The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination.? See?Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz?v.?Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis The Veteran asserts that his headaches began during active duty and have been continuous since that time. There is evidence of a current disability as the Veteran is currently diagnosed with migraine headaches. See e.g., January 2020 headache examination report. There is also evidence of an in-service disease. There are multiple complaints of headaches in service. According to a July 2002 service treatment record (STR), the Veteran complained of headaches and stomachache; he stated that his head hurt more than his stomach and light increased his head pain. According to a January 2005 STR, the Veteran received treatment status-post an assault with altered mental status; the service treatment record noted that he was found unresponsive after being hit in the thigh with a baton by the police. He resultantly underwent a computed tomography (CT) scan of the head which showed no evidence of an acute intracranial process. In February 2005, the Veteran complained of headaches at night with aches, fatigue, cough, and nasal congestion. On a June 2005 post-deployment health reassessment, he answered "yes" to the question of whether he had had symptoms of headaches or developed them anytime during this deployment. On a September 2008 post-deployment health reassessment, he answered "yes" to the question of whether he had had symptoms of headaches in the past week. On an October 2011 post-deployment health reassessment, he answered "no" to the question of whether he went to see a healthcare provider due to bad headaches. A month after his August 2013 discharge from active-duty service, the Veteran filed a claim for a headache disability. Post-service treatment records within a year of discharge show complaints of headaches. In January 2014, the Veteran underwent a VA headache examination, at which time he reported having headaches that began approximately in 2007. He indicated that he experienced headaches approximately two to three times a week, which lasted a day at a time. He described the pain as constant. He had difficulty working through the severe headaches but managed milder ones. The examiner concluded that there was no objective evidence to support a diagnosis of chronic headaches. No opinion was provided. VA treatment records from 2014 to 2019 show complaints of headaches. In January 2020, the Veteran underwent another VA headache examination, at which time the examiner confirmed a diagnosis of migraine headaches. The Veteran reported that the onset of the headaches was during active-duty service. After a review of the record and examination of the Veteran, the examiner concluded that the diagnosed migraine headaches were less likely than not related to service. The examiner reasoned that the February 2013 separation examination was silent for a diagnosis of migraine headaches and that the Veteran checked "no" to the question of whether he had frequent or severe headaches. In a February 2020 statement in support of claim, the Veteran's spouse noted that she met him in 1998 and they dated until they got married in 2003. She noted that he had bad headaches after long runs with his unit. The headaches required him to sit in a dark room until they went away. In a September 2021 addendum opinion, a VA examiner opined that the claimed headaches were less likely than not had their onset during service or were due to an event, disease, or injury during service. This examiner reasoned that the headaches in 2002 were an infectious transitory condition and that the 2005 reports of headaches were also accompanied by chills, aches, cough, and fever. The examiner again noted that the separation examination in 2013 documented no headaches. The examiner failed to address the Veteran's competent lay reports regarding the onset of headaches during service and the continuous symptoms of headache since separation from service. On review, the Board finds that service connection is warranted. As discussed, there is competent evidence of currently diagnosed migraine headaches as well as evidence of in-service headache complaints. Moreover, the Veteran, as a layperson, is competent to report having headaches, both during and ever since service, because he witnessed such pain first-hand.? See Layno v. Brown, 6?Vet. App.?465 (1994).? The Veteran's spouse is also competent to report that she witnessed him having headaches. The Board does not doubt the credibility of these lay statements.? The record contains unfavorable VA medical opinions, but as previously determined by the Board and the JMR, those opinions are inadequate to decide the claim as they do not address the lay statements regarding the onset of his headaches during service and do not address all relevant (and favorable) evidence of record. In this regard, in addition to the in-service headache complaints, including after 2005 and 2008 deployments, the Veteran filed a service connection claim for a headache disability within a month of his service discharge in 2013, and complaints of headaches (2 to 3 migraines per week) are documented during the first year after discharge. Thus, although the Veteran did not report frequent or severe headaches on his separation report, there is evidence of relevant headache reports and symptoms shortly after discharge from service and thereafter until a formal diagnosis of migraine headaches was rendered. Additionally, while the 2021 opinion attributed some of the Veteran's headaches in service to a viral condition, there is also STR evidence of headaches accompanied by stomachache and photophobia, which does not appear to be attributed to a viral condition. Indeed, a publicly available Mayo Clinic list includes nausea and light sensitivity as symptoms of migraine headaches. See https://www.mayoclinic.org/diseases-conditions/migraine-headache/symptoms-causes/syc-20360201. Although there is no adequate medical opinion addressing whether the Veteran's migraines are related to the in-service headaches, migraine headaches are an organic disease of the nervous system and therefore a chronic disease. Giles v. McDonald, 987 F.3d 1370, 1374 (Fed. Cir. 2021) (the term "other organic diseases of the nervous system [in 38 C.F.R. § 3.309 (a)] encompasses numerous distinct diseases, such as... migraines"). Pursuant to 38 C.F.R. § 3.303 (b), if there is a "chronic disease shown as such in service" and "subsequent manifestations of the same chronic disease at any later date, however remote," a finding of service connection is warranted, unless the manifestations "are clearly attributable to intercurrent causes." See 38 C.F.R. § 3.303 (b) ("When the disease identity is established... , there is no requirement of evidentiary showing of continuity); Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease). The evidence of currently diagnosed migraine headaches and the STRs showing multiple headache complaints during service, some with nausea and light sensitivity, are sufficient to satisfy the criteria of chronic disease shown as such in service and manifestations of the same chronic disease diagnosed as migraine headaches at a later date. The criteria to establish service connection for migraine headaches are met and the appeal is granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.