MIGRAINE

MARJORIE A. AUER · 2026 · Case ID: A26034541

MIXED

Summary

The veteran, who served from March 1990 to December 1997, appeals the denial of service connection for chronic headaches as secondary to major depressive disorder (MDD) and the remand of a claim for sleep apnea (OSA) secondary to MDD. The Board is bound by favorable findings that the veteran has migraines, participated in a toxic exposure risk activity (TERA), and had a qualifying in-service event. The primary issue on appeal is the denial of service connection for headaches secondary to MDD. The March 2024 VA examiner opined that the headaches were less likely than not related to service or TERA, citing a lack of chronicity in service records and no medical literature correlating migraines with TERA. The Board discounted this opinion for failing to consider the veteran's statements and the lack of chronicity evidence. A subsequent January 2025 VA opinion found the migraines less likely than not proximately due to MDD or its medications, attributing them more to obesity, stress, and age. The Board found this opinion inadequate for failing to address obesity as an intermediate step and its connection to MDD. The OSA claim was remanded for a new VA examination to address whether MDD caused or aggravated obesity, and if that obesity, in turn, caused or aggravated the OSA, applying the but-for causation standard. The headache claim was denied as the evidence weighed against it, and the benefit of the doubt doctrine was not applied.

Rationale

No nexus between headaches and service or TERA; VA opinions found less likely than not related; March 2024 opinion discounted for lack of chronicity evidence; January 2025 opinion inadequate for not addressing obesity as intermediate step

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250917-588318

Full Decision Text

Citation Nr: A26034541
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 250917-588318
DATE: April 14, 2026

ORDER

Entitlement to service connection for chronic headache, as secondary to major depressive disorder (MDD) is denied.

REMANDED

Entitlement to service connection for sleep apnea as secondary to service-connected major depressive disorder (claimed as depression), to include obesity as an intermediate step, is remanded.

FINDING OF FACT

The Veteran's headaches were not incurred in service and were not proximately caused by or aggravated by the Veteran's service-connected major depressive disorder.

CONCLUSION OF LAW

The criteria for entitlement to service connection for headaches, to include as secondary to the Veteran's major depressive disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1990 to December 1997.

In a September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to service connection for obstructive sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection and Secondary Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Service connection on a secondary basis requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability either (a) caused, or (b) aggravated, the nonservice-connected disability. 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

The third element of secondary service connection requires evidence showing that the nonservice-connected disability is either proximately due to, or the result of, a service-connected disability or has an increase in severity aggravation that is proximately due to or the result of a service-connected disability. Furthermore, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b).

Lay statements may serve to support a claim for entitlement to service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for chronic headaches, to include as secondary to major depressive disorder (MDD), is denied.

In September 2023, the Veteran filed a claim for entitlement to service connection for chronic headache, in addition to other claims. A March 2024 rating decision denied the Veteran's claim. Relying on the March 2024 VA opinions, the AOJ found no nexus between the Veteran's headache condition and military service or due to toxic exposure risk activities (TERA). The AOJ made the favorable findings that the Veteran: (1) has a current diagnosis of migraines headaches; (2) participated in a TERA; and (3) had a qualifying event (a motor vehicle accident) during service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c).

In September 2024, the Veteran filed a request for higher-level review, asserting that his headache condition is secondary to his service-connected depression. A December 2024 rating decision found a duty-to-assist error because the AOJ failed to get a VA examination or opinion regarding headaches as secondary to the Veteran's primary, service-connected major depressive disorder (MDD). The claim was returned for further development.

Additional VA opinions were obtained in January 2025. An April 2025 rating decision again denied the claim. The Veteran then filed this appeal.

Turning to the evidence of record, the Veteran underwent a VA examination in March 2024. The VA examiner diagnosed the Veteran with migraine including migraine variants. The examiner noted that the Veteran's headaches occur more than once per month, on both sides of his head and last for several hours but less than one day. The Veteran stated that he takes ibuprofen and Tylenol for headaches.

The March 2024 VA examiner opined that the Veteran's headache condition is less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. "Rationale is records do not show claimant having migraines during service. In-service records show headaches related to upper respiratory infection and not solely on its own. The also are no medical treatment evidence to show chronicity of care from service to show a possible connection. Therefore, no nexus has been established." She also opined that the Veteran's headaches were not related to toxic exposure risk activities (TERA) because, "there are no medical literature that show a correlation between the migraines and the TERA. Risk factors such as age and stress and depression outweigh the TERA. Therefore, no nexus has been established." As this opinion relies on the lack of medical treatment evidence to show chronicity of care and does not appear to consider the Veteran's statements, the Board will discount the conclusions made therein.

After the December 2024 higher-level review return, the Veteran was afforded another VA opinion in January 2025 to address secondary service connection. The VA examiner opined that the Veteran's migraine condition is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's service-connected major depressive disorder or the medications used to treat the Veteran's major depressive disorder. There is no evidence to suggest that the [Migraine condition] is due to any one particular cause
nexus has been established." As this opinion relies on the lack of medical treatment evidence to show chronicity of care and does not appear to consider the Veteran's statements, the Board will discount the conclusions made therein.

After the December 2024 higher-level review return, the Veteran was afforded another VA opinion in January 2025 to address secondary service connection. The VA examiner opined that the Veteran's migraine condition is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's service-connected major depressive disorder or the medications used to treat the Veteran's major depressive disorder. There is no evidence to suggest that the [Migraine condition] is due to any one particular cause, namely the major depressive disorder or the medications used to treat the Veteran's major depressive disorder. The vast majority of migraines are idiopathic with completely unexplained causes."

The January 2025 examiner also opined that the Veteran's migraine condition was less likely than not "aggravated beyond its natural progression by the Veteran's service-connected major depressive disorder or the medications used to treat the Veteran's major depressive disorder condition. There is no evidence to determine objectively that that the headache condition worsened or was aggravated due to any one particular cause, namely the major depressive disorder or the medications used to treat the Veteran's major depressive disorder... Attributing the aggravation of the headaches to major depressive disorder or the medications used to treat the Veteran's major depressive disorder without objective evidence would be entirely speculative."

Medical records reveal few complaints of headaches. The Veteran asserts that his headaches started in the 1990s. See C&P examination, March 2024. Although the Veteran takes medication for prevention of migraines and to treat migraines, the records do not show the use of anti-depressant or other mental health medication. In a February 2024 VA mental health examination, the examiner noted, "No current counseling. No medication." The Veteran's mental health VA examinations do not mention headaches or migraines. The Veteran's medical records show "headaches-seldom occurring 1/month lasting 3-04 hrs started--likely migraines--will give sumatriptan for attack." See CAPRI treatment record January 2023. None of the Veteran's medical records note headache or migraine occurring in association with active service or as part of the Veteran's depression or treatment for depression.

The Veteran has not submitted any private medical records regarding a connection or nexus between his headache condition and his military service or between his headache condition and his service-connected major depressive disorder or any medication used to treat MDD. The Veteran has also not provided any research evidence showing a connection between headache and depression.

Other than the Veteran's assertion that his headaches are related to his depression, there is no other lay evidence regarding a nexus between the Veteran's headache condition and his military service or between his headache condition and his service-connected MDD or any medication used to treat MDD. In addition, the record does not show that the Veteran takes medication for his major depressive disorder.

Therefore, the evidence for and against the Veteran's service connection claim for depression secondary to headaches is neither evenly balanced, nor approximately so. Rather, the evidence weighs persuasively against the claim. The benefit of the doubt doctrine is therefore not for application and service connection for headaches on a direct basis, or as secondary to major depressive disorder, is not warranted. See 38U.S.C. §5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected major depressive disorder (MDD) and/or obesity as an intermediate step, is remanded.

In September 2023, the Veteran filed a claim for entitlement to service connection for OSA secondary to service-connected depression among other claims. A March 2024 rating decision denied the Veteran's claim. The AOJ found no nexus between the Veteran's OSA and military service or due to toxic exposure risk activities (TERA). The AOJ made the favorable findings that the Veteran: (1) has a current diagnosis of OSA, and (2) participated in a TERA. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c).

In September 2024, the Veteran filed a request for higher-level review, asserting that his sleep apnea condition is secondary to his service-connected depression and that the medication he takes to treat his depression worsens his sleep apnea. A December 2024 rating decision found a duty-to-assist error because the AOJ failed to get a VA examination or opinion regarding OSA as secondary to the Veteran's primary, service-connected major
risk activities (TERA). The AOJ made the favorable findings that the Veteran: (1) has a current diagnosis of OSA, and (2) participated in a TERA. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c).

In September 2024, the Veteran filed a request for higher-level review, asserting that his sleep apnea condition is secondary to his service-connected depression and that the medication he takes to treat his depression worsens his sleep apnea. A December 2024 rating decision found a duty-to-assist error because the AOJ failed to get a VA examination or opinion regarding OSA as secondary to the Veteran's primary, service-connected major depressive disorder (MDD). The claim was returned for further development.

Additional VA opinions were obtained in January 2025. An April 2025 rating decision again denied the claim. The Veteran then filed this appeal.

A March 2024 VA examination noted that the Veteran was diagnosed within a February 2023 sleep study and that the Veteran uses a continuous positive airway pressure (CPAP) machine. The Veteran stated that condition started in the 1990s with symptoms of snoring and daytime fatigue. The March 2024 VA examiner rendered a secondary service connection opinion regarding proximate causation and a TERA opinion.

The March 2024 examiner opined that the Veteran's OSA is "less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of the Veteran's service-connected condition of depression. Rationale is depression does not cause physical upper airway obstruction to cause such OSA. There is no pathophysiological evidence to support the claim. Therefore, no nexus has been established." She also opined that the Veteran's OSA was not related to toxic exposure risk activities (TERA) because "there are no medical literature that shows a correlation between OSA and the TERA. Risk factors such as age, poor sleep habits, allergies outweigh the TERA. Therefore, no nexus has been established."

After the December 2024 HLR return, additional VA opinions were obtained. In the January 2025 VA opinions regarding secondary service connection, the examiner opined that the Veteran's OSA "was less likely than not proximately due to or the result of the Veteran's service-connected major depressive disorder or the medications used to treat the Veteran's major depressive disorder condition. The polysomnography report found OSA, not central apnea which would be due to central nervous system issues such as would happen in advanced/severe PTSD. The Veteran was diagnosed with obesity. His BMI has been over 32.8 which is in the 'obese' range. According to the Mayo Clinic the 'leading risk factor of OSA is Excess weight, Obesity' . . . It is much more likely that the condition is due to the obesity, smoking, and age-related contraction of the throat causing obstruction. In this case the most obvious and likely causes are anatomic. This is further supported by the fact that the vet's symptoms are relieved with CPAP use since the positive airway pressure is mitigating the obstruction. If the condition was psychiatric in nature or due to the medications it would be highly unlikely that CPAP would alleviate the problem."

The January 2025 examiner gave the same rationale regarding aggravation, adding that "There is no evidence in the entire e-file of any 'aggravation,' nor any evidence aggravation has ever been objectively verified. Nor is there any evidence to attribute 'aggravation' of the OSA to major depressive disorder or the medications used to treat the Veteran's major depressive disorder. Such a determination is not objectively supported."

While the examiner opined that the Veteran's obesity was a likely risk factor of OSA, he did not address obesity as an intermediate step. Obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). To determine whether obesity is an intermediate step, the following sequential questions must be evaluated: (1) was the Veteran's obesity caused or aggravated by a service-connected disability, (2) if yes, was the obesity, or its aggravation, a substantial factor in causing the Veteran's claimed disability, and (3) if yes, would the Veteran not have been diagnosed with the claimed condition but for the obesity, or the aggravation of the obesity. VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300 (2020); Garner v. Tran, 33 Vet. App. 241 (2021). If the questions are all answered in the affirmative
step, the following sequential questions must be evaluated: (1) was the Veteran's obesity caused or aggravated by a service-connected disability, (2) if yes, was the obesity, or its aggravation, a substantial factor in causing the Veteran's claimed disability, and (3) if yes, would the Veteran not have been diagnosed with the claimed condition but for the obesity, or the aggravation of the obesity. VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); Walsh v. Wilkie, 32 Vet. App. 300 (2020); Garner v. Tran, 33 Vet. App. 241 (2021). If the questions are all answered in the affirmative, then secondary service connection with obesity as an intermediate step will be established.

The Board finds that the January 2025 VA examination is inadequate because the examiner noted the Veteran's obesity as a risk factor for OSA but did not address whether the Veteran's service-connected disabilities, including major depressive disorder (and any treatment of these disabilities) could cause obesity, leading to or aggravating the Veteran's OSA.

Because the January 2025 VA opinions regarding secondary service connection are inadequate, this pre-decisional duty-to-assist error must be addressed by remand of the OSA claim.

Accordingly, the claim is REMANDED for the following:

1. Schedule the Veteran for an examination for his sleep apnea. If the Veteran does not wish to report to an examination, obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran's obstructive sleep apnea. Provide the entire claims file and this remand to the VA examiner.

The examiner should review the Veteran's file and opine as to the following:

(a) Is it at least as likely as not that the Veteran's obesity has been caused by his service-connected major depressive disorder?

(b) Is it at least as likely as not the Veteran's obesity has been aggravated (increased in severity) by his service-connected major depressive disorder?

(c) If the Veteran's obesity is deemed to have been caused or aggravated by his service-connected disabilities, please explain whether it is at least as likely as not the Veteran's obesity caused OR aggravated his sleep apnea?

In doing so, the examiner must apply the but-for causation standard as clarified in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), and determine whether the Veteran's sleep apnea would not have occurred but for the service-connected condition leading to or aggravating obesity.

Please note that the term "aggravation" means any incremental increase in disability or any additional impairment of earning capacity of a disability, regardless of permanence, at any time during the period on appeal. If aggravation is found, please identify, to the extent possible, the baseline level of disability prior to the aggravation.

A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Newton

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.

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