MIGRAINE

Summary

The Veteran, an Army veteran who served from January 1975 to January 1977, appeals the denial of service connection for migraines and the remand of his fibromyalgia claim. The Board found that the Veteran has service-connected PTSD, major depressive disorder, and polysubstance use disorder, which constitute an acquired psychiatric disability. The primary issue for migraines was whether they were secondarily related to this acquired psychiatric disability. The Veteran submitted a private medical opinion from December 2021, received in February 2025, which opined that the migraines were at least as likely as not aggravated by the acquired psychiatric disorder, considering treatment medications. VA treatment records also indicated that medications for the psychiatric disorder worsened the headaches. A July 2020 VA examination was negative regarding secondary connection to tinnitus but failed to address aggravation by the psychiatric disorder. Given the lack of contrary evidence and resolving doubt in the Veteran's favor, the Board granted service connection for migraines. The fibromyalgia claim was remanded because the record lacked a confirmed diagnosis, and outstanding private treatment records, which the Veteran referenced, were not obtained by the RO prior to its decision, constituting a duty-to-assist error.

Rationale

Migraines found secondary to service-connected acquired psychiatric disability.; Private medical opinion found migraines aggravated by psychiatric condition and treatment.; VA treatment records support aggravation by medication.; Prior VA exam insufficient as it did not address aggravation by psychiatric disorder.

Full Decision Text

Citation Nr: A26038608
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 210715-172704
DATE: April 24, 2026

ORDER

Entitlement to service connection for migraines is granted.

REMANDED

Entitlement to service connection for fibromyalgia is remanded.  

FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his migraines are secondary to his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and polysubstance use disorder (hereinafter "acquired psychiatric disability").

CONCLUSION OF LAW

The criteria for entitlement to service connection for migraines have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1975 to January 1977.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2021, the Veteran submitted a timely VA Form 10182, Decision Review Request Board Appeal (Notice of Disagreement (NOD)) in response to the July 2020 rating decision and elected Hearing Review docket.

The Board hearing was held in February 2025 and a transcript for the Board hearing has been associated with the claims file.  Under the Appeals Modernization Act (AMA), when a claimant seeks appellate review through the Board's Hearing Review docket, the Board may consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal and the Veteran may submit additional evidence within 90 days after their hearing.  Accordingly, the Board may consider evidence of record at the time of the July 2020 rating decision and within 90 days after the Veteran's February 2025 hearing.  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 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 service connection claim for migraines, 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 service connection claim for fibromyalgia, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim.  38 C.F.R. § 3.103(c)(2)(ii).  

Service Connection

Entitlement to service connection for migraines.

The Veteran contends that his migraine headaches are secondarily related to his service-connected acquired psychiatric disability.  See February 2025 Hearing Transcript.

Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability results from the service-connected disability.  38 U.S.C. §§ 1110, 1131; Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (holding that section 1110 "requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability").

Rating decisions have favorably found that the Veteran has a diagnosis of migraine headaches and that the primary disability, PTSD with MDD and polysubstance use disorder, is service connected.  See July 2020 Rating Decision - Narrative and February 2022 Rating Decision - Narrative.  The Board is bound by these favorable findings.  See 38 C.F.R. § 3.104(c).  As such, the question remaining before the Board is whether a nexus exists between the Veteran's migraines and a service-connected disability.

Turning to the evidence of record
Fed. Cir. 2023) (holding that section 1110 "requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability").

Rating decisions have favorably found that the Veteran has a diagnosis of migraine headaches and that the primary disability, PTSD with MDD and polysubstance use disorder, is service connected.  See July 2020 Rating Decision - Narrative and February 2022 Rating Decision - Narrative.  The Board is bound by these favorable findings.  See 38 C.F.R. § 3.104(c).  As such, the question remaining before the Board is whether a nexus exists between the Veteran's migraines and a service-connected disability.

Turning to the evidence of record, a December 2021 private medical opinion, received in February 2025, opined that the Veteran's migraine headaches were at least as likely as not aggravated by his acquired psychiatric disorder, to include treating medications.  The examiner based his opinion on a detailed review of the Veteran's claims file, medical records, consultation with the Veteran, and relevant medical literature.  See February 2025 Medical Treatment Record - Government Facility.  

Review of the VA treatment records also indicated the Veteran's medications prescribed for his acquired psychiatric disorder caused or worsened his headaches.  See March 2018 CAPRI and May 2019 CAPRI.  

While a July 2020 VA examiner provided a negative opinion with respect to secondary service connection, the examiner focused on causation as related to tinnitus and failed to provide an opinion on whether his migraines were aggravated by the Veteran's tinnitus.  See July 2020 Compensation and Pension (C&P) Exam.  As such, there are no opinions contrary to the private examiner's determination that the Veteran's migraines are aggravated by his service-connected acquired psychiatric disability.  

Therefore, with no evidence to the contrary and resolving reasonable doubt in the Veteran's favor, entitlement to service connection for migraines is warranted.

REASONS FOR REMAND

Entitlement to service connection for fibromyalgia is remanded.

Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the appellant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal.  38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).  The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim.  38 C.F.R. § 20.802(a).

Here, it is unclear from the record whether the Veteran has a current diagnosis of fibromyalgia.  The Board acknowledges a review of the VA treatment records notes the following: "ACR 2016 FIBROMYALGIA CRITERIA WPI SS" in February 2019 of which the reviewing provider indicated the Veteran's no show for the appointment.  However, there is no actual diagnosis provided, to include before or after this treatment record, during the relevant period on appeal that was associated with a physical examination and formal workup, to include in the past medical history lists noting the Veteran's conditions, that referenced a confirmed diagnosis for fibromyalgia.  See May 2019 CAPRI.  Nevertheless, there appears to be outstanding private treatment records as the Veteran references receiving treatment by his private doctor in a July 2020 VA examination.  A review of the claims file does not show that the RO had attempted to obtain any outstanding private treatment records prior to the July 2020 rating decision on appeal.  Since the AOJ was on notice of the existence of pertinent private treatment prior to the AOJ decision on appeal, its failure to obtain them constitutes a pre-decisional duty to assist error.  See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159, 20.802(a).  Thus, remand is warranted to obtain such records.

The Board acknowledges that the Veteran has not been provided with a VA examination or etiological opinion for his claimed fibromyalgia as secondary to his acquired psychiatric disability.  However, as service connection for his acquired psychiatric disability was not granted until a February 2022 rating decision, after the July 2020 rating decision on appeal, the AOJ was not obligated to perform any necessary development, such as obtaining a VA secondary basis opinion, regarding this theory.  Thus, a pre-decisional duty-to-assist error was not committed by failing to develop the Veteran's secondary service connection theory and this remand may not order development related to this theory of entitlement at this time.
).  Thus, remand is warranted to obtain such records.

The Board acknowledges that the Veteran has not been provided with a VA examination or etiological opinion for his claimed fibromyalgia as secondary to his acquired psychiatric disability.  However, as service connection for his acquired psychiatric disability was not granted until a February 2022 rating decision, after the July 2020 rating decision on appeal, the AOJ was not obligated to perform any necessary development, such as obtaining a VA secondary basis opinion, regarding this theory.  Thus, a pre-decisional duty-to-assist error was not committed by failing to develop the Veteran's secondary service connection theory and this remand may not order development related to this theory of entitlement at this time.  However, on remand, the AOJ's duty to assist the Veteran will include the duty to perform all necessary development under VA's duty to assist (if any) with regard to this secondary service connection theory of entitlement.  38 C.F.R. §§ 3.103(c)(2)(ii), 3.2502. 

The matter is REMANDED for the following action:

With any necessary identification of sources and authorization by the Veteran (VA Form 21-4142 and VA Form 21-4142a), request all outstanding private treatment records not already associated with the file.  Make two requests for the authorized records from any private treatment provider identified by the Veteran, unless it is clear after the first request that a second request would be futile.  If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  If the records are not obtained, a negative response must be associated with the claims file and communicated to the Veteran and his representative in writing in accordance with 38 C.F.R. § 3.159(e), in order to allow him the opportunity to obtain and submit those records for VA review.

 

 

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.C., 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.