MIGRAINE

Summary

The Veteran served on active duty from August 1991 to February 2005. This case comes before the Board of Veterans' Appeals (Board) following a February 2012 rating decision, with prior remands in February 2019 and December 2020. The Veteran appealed the Board's April 2021 decision, which denied service connection for headaches and a gastrointestinal disability. The Board vacated its April 2021 decision, finding the Veteran was denied due process because relevant in-service medical treatment records were not considered. The Veteran claims headaches and gastrointestinal issues, diagnosed as migraines, colitis, hiatal hernia, and rapid bowel transit, are due to toxic exposures during service. Service treatment records noted some acute headaches and gastrointestinal complaints but lacked chronic diagnoses. However, the Veteran submitted credible lay statements, including from a military supervisor and a fellow service member, corroborating in-service headaches and GI symptoms. Confirmed exposure to human waste, burning trash, and industrial waste was noted by the Defense Intelligence Agency. Medical opinions from a VA examiner and the Veteran's private physician suggested a possible or likely connection to service. Despite some negative opinions, the Board found the evidence in equipoise, applying the benefit of the doubt to grant service connection for both headaches and the gastrointestinal disability.

Rationale

Current diagnosis of migraines; Credible lay statements corroborating in-service headaches; Confirmed exposure to toxins; Evidence in equipoise, benefit of doubt applied

Full Decision Text

Citation Nr: 23042015
Decision Date: 08/01/23	Archive Date: 08/01/23

DOCKET NO. 17-25 026
DATE: August 1, 2023

ORDER

The Board's April 2021 decision denying entitlement to service connection for a headache disability and a gastrointestinal disability is vacated.

Entitlement to service connection for a headache disability is granted.

Entitlement to service connection for a gastrointestinal disability, diagnosed as gastroesophageal reflux disease, hiatal hernia, colitis, and rapid bowel transit, is granted.

FINDINGS OF FACT

1. The April 2021 Board decision failed to consider relevant evidence of record in accordance with all applicable regulations, thereby denying the Veteran his due process.

2. The Veteran's headache disability is causally or etiologically due to service.

3. The Veteran's gastrointestinal disability is causally or etiologically due to service.

CONCLUSIONS OF LAW

1. The criteria to vacate the April 2021 Board decision have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000.

2. The criteria for service connection for a headache disability are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a gastrointestinal disability are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1991 to February 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2019 and December 2020, these matters were remanded by the Board for further development.

Vacatur of the April 2021 Board Decision

In an April 19, 2021, Board decision, the issues of entitlement to service connection for a headache disability and a gastrointestinal disability were denied.

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the Appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence.  38 C.F.R. § 20.1000.  For the reasons discussed below, the April 2021 Board decision is vacated.  

In the present appeal, documents in the record at the time of the April 2021 Board decision included evidence regarding the Veteran's in-service medical treatment records. These documents were not considered or addressed in the April 2021 Board decision, which constitutes a denial of due process, as these documents are relevant evidence for adjudication purposes of the claims in view of applicable regulations and the specific facts of this case.

Consequently, the April 2021 Board decision is vacated. Having vacated the April 2021 Board decision, the Board will once again consider the issues on appeal below.

Service Connection

The Veteran seeks entitlement to service connection for a headache disability and a gastrointestinal disability.

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

In general, service connection requires competent evidence showing: (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 or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Equal
, 1167 (Fed. Cir. 2004).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant).

Entitlement to service connection for a headache disability.

The Veteran asserts he began experiencing headaches during service and they have continued post service. He believes his headaches are due to toxic exposures during service.

The Veteran has a current diagnosis of migraines. See March 2019 Disability Benefits Questionnaire. As such, Shedden element (1), current diagnosis, is met.

Service treatment records note a few instances of acute headaches, but do not note any complaints or diagnoses of a chronic headache disorder. However, as noted throughout the claims file, the Veteran was stationed overseas, and it was not typical to keep medical records at the locations where he was stationed. See e.g., November 2013 letter received from Support Services Branch. Additionally, the Veteran indicated that he did not seek medical treatment for his headaches. See August 2010 VA examination. In support of his claim, the Veteran submitted multiple lay statements in which he asserts he began experiencing headaches during service. The Board notes that the Veteran is competent to report and identify when he experienced headaches, as headaches are capable of lay observation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Board finds these statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, the Board notes that a statement received in August 2014 from the Veteran's military supervisor indicates the Veteran consistently reported experiencing headaches during service. See August 2014 statement from R.M. Furthermore, a statement received in August 2022 from a fellow service member indicates the Veteran constantly complained of headaches after returning from service overseas. See August 2022 statement from G.T. Finally, the Board notes that it has been confirmed that the Veteran was responsible for servicing and maintaining a military dry filter system that collected samples of ambient air quality and contaminants. See May 2012 letter from Defense Intelligence Agency. As such, the Board finds that Shedden element (2) has been satisfied.

As for Shedden element (3), nexus, the Board finds that the evidence is at least in equipoise that the Veteran's current headache disability is due to service. In May 2012, a letter from the Defense Intelligence Agency indicates that the Veteran was exposed to human waste, burning trash, and industrial waste on a daily basis and that the Veteran's medical condition may have a causal relationship to his time in service. In January
. Finally, the Board notes that it has been confirmed that the Veteran was responsible for servicing and maintaining a military dry filter system that collected samples of ambient air quality and contaminants. See May 2012 letter from Defense Intelligence Agency. As such, the Board finds that Shedden element (2) has been satisfied.

As for Shedden element (3), nexus, the Board finds that the evidence is at least in equipoise that the Veteran's current headache disability is due to service. In May 2012, a letter from the Defense Intelligence Agency indicates that the Veteran was exposed to human waste, burning trash, and industrial waste on a daily basis and that the Veteran's medical condition may have a causal relationship to his time in service. In January 2014, a VA examiner opined that the Veteran's subjective headaches were possibly related to environmental exposures. Similarly, in March 2019, the Veteran submitted a Disability Benefits Questionnaire, in which a physician opined it was more likely than not that the Veteran's headaches were due to service. The physician explained that the opinion was based on the letter from the Defense Intelligence Agency indicating the Veteran was a chemical operator, his diagnosis from private treatment records, and several statements from both the Veteran's treating physician and fellow servicemembers.

The Board acknowledges the multiple negative medical opinions of record. However, the Board finds the May 2012, January 2014 and March 2019 positive medical opinions place the record at least in equipoise. Of note, there are inadequacies in both the private and VA medical opinions obtained. The evidence of record does not satisfactorily prove or disprove that the Veteran's claimed headache disability is causally or etiologically due to service. However, the Board finds that an additional remand to obtain yet another addendum opinion would likely serve no benefit to the Veteran. The Board declines to remand this case again and further delay disposition of this appeal. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Here, the Veteran has a current diagnosis, reported in-service symptoms and confirmed exposures to toxins, and medical opinions that relate his current diagnosis to his time in service. As such, resolving all reasonable doubt in his favor, the Veteran's service connection claim for a headache disability is granted. 

Entitlement to service connection for a gastrointestinal disability.

The Veteran asserts he began experiencing gastrointestinal symptoms during service, claimed as nausea and diarrhea, and they have continued post service. He believes his symptoms are due to toxic exposures during service.

Throughout the course of the appeal, the Veteran has had several diagnoses pertaining to this claim. In 2014, the Veteran was diagnosed with colitis. The claims file also contains diagnoses such as rapid bowel transit, gastroesophageal reflux disease, hiatal hernia, and bowel frequency and urgency. Shedden element (1), current diagnosis, is met.

Service treatment records note the Veteran was seen on several occasions for complaints of stomach cramps, nausea, and vomiting. The records do not document chronic symptoms during service. However, as noted throughout the claims file, the Veteran was stationed overseas, and it was not typical to keep medical records at the locations where he was stationed. See e.g., November 2013 letter received from Support Services Branch. Additionally, the Veteran indicated that he did not seek medical treatment during service or post-service when he experienced symptoms. See August 2010 VA examination. In support of his claim, the Veteran submitted multiple lay statements in which he asserts he began experiencing gastrointestinal symptoms during service. The Board notes that the Veteran is competent to report and identify when he experienced symptoms such as pain, nausea, and diarrhea, as these symptoms are capable of lay observation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Board finds these statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, the Board notes that a statement received in August 2014 from
 as pain, nausea, and diarrhea, as these symptoms are capable of lay observation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Board finds these statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, the Board notes that a statement received in August 2014 from the Veteran's military supervisor indicates the Veteran consistently reported experiencing nausea, irregular bowel movements, and hard, lumpy, or loose and watery stool throughout his assignment during service. See August 2014 statement from R.M. Finally, the Board notes that it has been confirmed that the Veteran was responsible for servicing and maintaining a military dry filter system that collected samples of ambient air quality and contaminants. See May 2012 letter from Defense Intelligence Agency. As such, the Board finds that Shedden element (2) has been satisfied.

As for Shedden element (3), nexus, the Board finds that the evidence is at least in equipoise that the Veteran's current gastrointestinal disability is due to service. In May 2012, a letter from the Defense Intelligence Agency indicates that the Veteran was exposed to human waste, burning trash, and industrial waste on a daily basis and that the Veteran's medical condition may have a causal relationship to his time in service. In January 2014, a VA examiner opined that the Veteran's bowel frequency and urgency were possibly related to environmental exposures. In July 2014, the Veteran's private physician, Dr. T. H. opined that the Veteran's diarrhea could possibly be connected to his exposure to airborne contaminants during service. 

The Board acknowledges the multiple negative medical opinions of record. However, the Board finds the May 2012, January 2014 and July 2014 positive medical opinions place the record at least in equipoise. Of note, there are inadequacies in both the private and VA medical opinions obtained. The evidence of record does not satisfactorily prove or disprove that the Veteran's claimed gastrointestinal disability is causally or etiologically due to service. However, the Board finds that an additional remand to obtain yet another addendum opinion would likely serve no benefit to the Veteran. The Board declines to remand this case again and further delay disposition of this appeal. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Here, the Veteran has a current diagnosis, reported in-service symptoms and confirmed exposures to toxins, and medical opinions that relate his current diagnosis to his time in service. As such, the Veteran's service connection claim for a gastrointestinal disability is granted. 

 

 

L. ANDERSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

	

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.