Veteranclaims’s Blog

November 7, 2021

Single Judge Application; migraine; Holmes v. Wilkie, 33 Vet.App. 67, 73 (2020) (explaining that the word “migraine” contemplates a range of symptoms beyond headaches);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-0947
BERNARD M. DICKENS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Army veteran Bernard M. Dickens appeals a 2020 Board decision denying service connection for migraine headaches and depression as secondary to his migraine headaches. Service connection is established when a veteran can show (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. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). There is no dispute that Mr. Dickens’s service treatment records (STRs) demonstrate that he complained of a headache during service and that he was diagnosed with migraine headaches in 2014. This case hinges entirely on whether the evidence established a nexus between Mr. Dickens’s in-service headaches and his current migraine condition or his depression and his current migraine condition. The Board found that the evidence of record weighed against a finding of nexus and, finding no clear error in the Board’s weighing of evidence, the Court affirms.
Mr. Dickens served in the Army for 6 months, from March to September 1981. In August 1981 he was experiencing cold symptoms, including a headache, and sought medical treatment at the Kenner Army Community Hospital.
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In March 2014 he filed a claim for service connection alleging that he had continuously experienced migraine headaches since leaving service. He also alleged that his headaches caused his depression. However, he has not claimed that his in-service headache was a migraine. See Holmes v. Wilkie, 33 Vet.App. 67, 73 (2020) (explaining that the word “migraine” contemplates a range of symptoms beyond headaches).
I. BACKGROUND
This case involves four competing medical opinions—three submitted by the veteran and one obtained by VA. Mr. Dickens submitted three private medical opinions to support his claim. The first, from January 2014, relied on Mr. Dickens’s statement that he had received a medical discharge from the Army because of his headaches and opined that his depression was caused by his headaches. No rationale was provided to support either of these conclusions. The second opinion, from March 2014, stated that the veteran’s 1981 in-service headache, noted in his STRs, marked the beginning of his current migraine condition despite the fact that the headache was an isolated incident, resolved after one day, and was not recorded as a migraine.
The veteran submitted a third private medical opinion in October 2017. This examiner suggested that he could not determine exactly when Mr. Dickens’s migraine condition began, but that it “is as likely as not that [his] documented in-service headaches mark the onset” of his current condition. R. at 367.
VA provided a medical opinion in January 2015. The examiner reviewed the veteran’s earlier submissions and offered a positive nexus opinion. However, after the opinion was issued, VA located his service records and found that they were inconsistent with the veteran’s assertions in two key ways: (1) the veteran’s service records showed that he had not received a medical discharge for his headaches and instead was discharged for disciplinary reasons, and (2) the veteran’s treatment record from Kenner Army Community Hospital did not indicate that he was suffering from a migraine. Instead the hospital treatment record shows that his headaches were related to cold symptoms and had resolved by the next day. R. at 368.
VA requested a clarification from the examiner, and he provided an addendum opinion in March 2015. Based upon the veteran’s STRs and personnel files, the examiner determined that it was less likely than not that the veteran’s current migraine disorder was related to the headache
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that he experienced in service. The regional office (RO) then denied Mr. Dickens’s claims and he appealed to the Board.
The Board, when weighing the evidence, found that the 2015 VA examiner’s opinion was the most probative evidence of record on the issue of nexus. The Board explained that it found the 2015 exam to be more probative than the 2017 exam because the 2017 examiner’s conclusion, that the veteran’s migraines coincided with his service and continued thereafter, was not supported by his STRs or any other contemporaneous medical records. The Board noted that the veteran’s in-service headache was not diagnosed as a migraine and that the veteran was not treated for any type of headache disorder until a1993 injury that produced headaches. It then determined that each of the 2014 private opinions was of low probative value and that the veteran was not competent to testify as to the etiology of his condition.
Finally, the Board addressed the veteran’s secondary service-connection claim for depression. It explained that, because his migraines did not qualify for service connection, secondary service connection was unavailable as a matter of law because his migraines caused his depression. The Board then considered, and denied, service connection on a direct basis for the veteran’s depression. It did not order a new medical opinion, finding that the Secretary did not have a duty to develop a direct service-connection claim for depression because there was no evidence of depression or any other psychiatric condition during service and “no indication that the [v]eteran’s depression symptoms are associated with his service.” R. at 9.
II. ANALYSIS
A. Service Connection for Migraines
Mr. Dickens argues that the Board erred in rejecting his lay testimony and discounting the probative value of the private medical opinions. He asserts that the Board was obligated to decide his claim based upon “all the evidence.” Informal Br. at 2. Specifically, he argues that the Board impermissibly rejected all of the evidence favorable to his claim. Id. at 5. Further, he disputes the Board’s conclusion that “the preponderance of evidence is against the claim, and the benefit of the doubt doctrine is not for application.” Id.
The Court begins with the veteran’s contention that the favorable private medical opinions should have established service connection for his migraine condition. Mr. Dickens is essentially arguing that the Board did not properly weigh the evidence in denying service connection.
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Contrary to the veteran’s argument, the Board did base its decision upon a consideration of the available evidence. However, after reviewing the evidence of record, the Board determined that the 2015 medical opinion was the most probative piece of evidence because it was the only exam “based on review of the [v]eteran’s lay contentions, his reported medical history, and review of the medical evidence of record.” R. at 6. In contrast, the Board found the three medical opinions submitted by the veteran to be of little probative value because none of these opinions reviewed the veteran’s recorded medical history or provided a reasoned rationale for their conclusions.
A medical opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and informs the Board of the examiner’s judgment on a medical question and provides the rationale to support that conclusion, Dallman v. Wilkie, 33 Vet.App. 101, 112 (2020). The Board is permitted to discount the probative value of a private medical opinion if it provides an adequate statement of its reasons for doing so. Nieves-Rodriguez v. Peake, 22 Vet.App 295, 302 (2008).
First, the Board found the March 2014 opinion to be of little probative value because the examiner did not provide a rationale to support his conclusion that the veteran’s headaches were related to service. See Stefl, 21 Vet.App. at 124 (examiners “must support [their] conclusions with an analysis that the Board can consider and weigh against contrary opinions”).
Next, the Board addressed the 2017 opinion. While the examiner did state that the veteran’s migraines began in service and continued thereafter, the Board noted that the veteran did not have migraines during service but only a cold-related headache. The Board then pointed out that the veteran did not seek treatment for any type of headache until an accident in 1993. Additionally, the veteran and the 2017 examiner both asserted that the veteran had suffered from a longstanding migraine condition, yet the veteran only received his diagnosis in 2014 further suggesting that his migraines did not begin until after his service.
Additionally, the January 2014 exam was based upon an inaccurate factual premise—that the veteran had received a medical discharge because of his headaches. R. at 5, 581. A medical opinion based on an inaccurate factual premise is not entitled to any probative weight and therefore the Board did not err in discounting the January 2014 exam. See Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005).
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In sum, the Board found that the private opinions were entitled to little probative weight because they did nothing more than parrot the veteran’s assertions. And, the Board provided a reasoned explanation for discounting each of the private opinions by documenting several inconsistencies between the private opinions and the objective evidence of record. It explained its decision to discount each of the opinions and supported its decisions by citing to the evidence of record.
The Board’s statement of reasons or bases must allow a claimant to understand the precise reason for the Board’s decision and be specific enough to facilitate the Court’s judicial review. Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc). As previously discussed, the Board explicitly laid out its reasons for discounting each of the private medical opinions submitted in this case. And, its reasoning was clear enough to facilitate the Court’s review. Because the Board identified a plausible basis in the record for each of its findings, the Court will affirm.
The veteran’s other contention, that the Board erred in discounting his lay testimony concerning the origin of his migraine condition, is equally unavailing. When a veteran seeks compensation for a chronic disease listed in 38 C.F.R. § 3.03(b), lay evidence evincing continuity of symptomology can be used to establish a nexus between an in-service event and a current disability. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).
While the veteran is competent to report his own symptoms, the Board found that he lacked the medical expertise to competently testify as to the etiology of his migraine condition and discounted his testimony on the subject. The Board, as the fact finder, is obligated to evaluate the probative value of evidence in the record—including lay evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board’s competency findings are findings of fact, reviewed for clear error. Id.
Here, the Board accepted that the veteran is competent to report his symptoms but explained that, because “migraine disabilities can have many causes,” the veteran would need specialized medical expertise to competently opine on the cause of his disability. R. at 6. There is no evidence in the record that the veteran possesses the medical expertise he would need to determine the etiology of a migraine disability and, therefore, the Board’s negative competency finding has a plausible basis in the record. Because the veteran is not competent to opine as to the etiology of his migraine condition, the Board did not err in discounting his lay testimony on the subject.
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B. Service Connection for Depression
Because the Board denied direct service connection for Mr. Dickens’s migraine condition, it follows that his claim for secondary service connection must also fail. Service connection is available for conditions caused by an existing service-connected disability. 38 C.F.R. § 3.310 (2020). The veteran has, throughout these proceedings, claimed that his depression was caused by his migraine condition. And, his opinion was echoed by two separate physicians. Because, as explained previously, the veteran’s migraine condition does not qualify for service connection, the depression brought on by the migraine condition cannot qualify for service connection as a matter of law.
Additionally, even though the veteran did not explicitly raise the argument, the Board considered whether he might be able to claim service connection for depression on a direct basis. However, it found that there “is no evidence of any event, injury, or disease related to depression or any other psychiatric disorder in service, and no indication that the veteran’s depression symptoms are associated with his service.” R. at 5. This conclusion is wholly supported by the record, and therefore, the Court will not disturb it.
III. CONCLUSION
To summarize, the appellant has not shown that the Board erred in any way by discounting the probative value of the private medical opinions and lay testimony. The Board’s evidentiary findings all have a plausible basis in the record, and it supported each of these findings with an adequate statement of reasons and bases. For these reasons, the Court AFFIRMS the January 23, 2020, Board decision.
DATED: June 30, 2021
Copies to:
Bernard M. Dickens
VA General Counsel (027)

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