Citation Nr: 0725537 Decision Date: 08/16/07 Archive Date: 08/22/07 DOCKET NO. 05-17 584A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Spouse ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from April 1956 to April 1958. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for migraine headaches. The veteran testified before the Board by videoconference from the RO in February 2007. FINDING OF FACT The veteran has been diagnosed with chronic dysrhythmic headaches that first manifested in service. CONCLUSION OF LAW The criteria for service connection for dysrhythmic headaches have been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION As an initial matter, review of the claims folder reveals compliance with the duty to notify and the duty to assist. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006). In the event any noncompliance is found, the Board observes that, given the completely favorable disposition of this appeal, it does not result in any prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The veteran served in two U.S. Army engineering battalions including overseas service in France and Germany. He contends that he was injured in a fall from a training platform in recruit training and treated at military hospitals for symptoms of headache, dizziness, and loss of vision. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service medical records could not be obtained. In May 2003, the National Personnel Records Center (NPRC) reported that these records were likely destroyed in a fire. The RO made no request for personnel records. When the veteran's medical records are lost, the Board has a heightened duty to assist the claimant in developing the claim. Russo v. Brown, 9 Vet. App. 46, 51 (1996). In a March 2003 claim, in other correspondence, and at hearings, the veteran stated that he had no personal copies of service medical records. However, he stated that he received recruit training at Fort Jackson, South Carolina, in May 1956 when he sustained a fall from a "tower." He stated that he was unconscious for several hours and was treated at a base medical facility. He further stated that he was subsequently assigned to the 850th Engineering Aviation Battalion and the 249th Engineer Battalion and that he was hospitalized for approximately 30 days for dizziness and loss of vision in August 1956 in France. He submitted a status of forces identification card that showed that he was assigned to the 850th Engineering Aviation Battalion located at a U.S. air base in Bordeaux, France. The veteran also stated that he was later assigned to a unit in Germany where he received additional treatment. U.S. Army Corps of Engineer Office of History records showed that the 249th Engineer Battalion was activated and sent to Germany in February 1955. U.S. Army Corps of Engineers, Bridge to the Past, Number 3, April 1995, http://www.hq.usace.mil/history/bridge3.htm (last visited Aug. 9, 2007). The RO made multiple requests to the NPRC for additional medical records from the units and Surgeon General files. In a July 2004 letter, the RO concluded that all efforts to locate service medical records had been exhausted and that any further attempts would be futile. The Board does not agree. The requests did not provide unit identity, locations, and dates with the level of specificity and accuracy that can be determined from all the evidence. The last response from NPRC was that no morning reports could be located for the 249th Engineering Battalion from April 1956 to July 1956. This was the wrong unit at the wrong time. There was no indication that searches were conducted for records at Fort Jackson in May 1956 or from the 850th Engineering Aviation Battalion in August 1956. Nevertheless, in a March 2007 statement, a fellow soldier stated that he was assigned to the same engineering battalion as the veteran at an air base in Bordeaux, France. He further stated that he visited the veteran in a hospital and observed that the veteran was experiencing severe headaches. The veteran waived consideration of this evidence by the agency of original jurisdiction. The Board concludes that the veteran received hospital in- patient treatment for headaches in service. Although there is no confirmation of the occurrence of a head injury in recruit training, the lay statement is competent evidence to show that the veteran was observed with symptoms of headaches and that in-patient care was required. The lay statement is consistent with the veteran's reports of his service activities and with the available service personnel records. In letters in February 2005, the veteran's spouse and a family friend stated that they knew the veteran since 1958 and that they observed the veteran experience recurrent headaches so severe as to cause nausea, prohibit operation of an automobile, and require rest. In correspondence and in hearings at the RO and before the Board, the veteran identified several physicians and medical facilities that provided post-service treatment for chronic headaches. The RO requested records from the providers; however, the earliest record obtained was from 2001 because the previous providers were deceased, not in practice, or the records had been destroyed. In the February 2007 Board hearing, the veteran stated that he experienced severe headaches regularly since service and had been dismissed from several jobs because the headaches interfered with his ability to perform assigned tasks. Treatment records from an unidentified medical provider from October 1998 to January 2000 showed no headache complaints or treatment. In February 2001, a private hospital emergency room examiner noted that the veteran reported recurrence of symptoms of moderate headaches that were occurring more frequently. A computed tomography scan of the brain showed no significant abnormalities. The examiner diagnosed migraine headaches and prescribed medication. In subsequent follow-up examinations at this facility, the examiners continued to note recurrent headache symptoms and use of medication. There were no comments regarding frequency, duration, or level of incapacitation. In December 2002, a magnetic resonance image of the brain showed age- appropriate atrophy, microvascular ischemia, but no acute infarctions. In February 2004, a private neurologist noted that he provided on-going treatment for dysrhythmic headaches and that he reviewed an abnormal electroencephalogram from July 2003. The neurologist attributed the headache disorder to head trauma at age 19. In February 2006, the same neurologist restated his earlier findings and noted that the veteran's headaches included loss of vision, nausea, and prostrating attacks occurring on the average of once per month for several months. He stated that he had reviewed the veteran's medical reports and treatment records and concluded that the veteran's headaches were related to military service. It is not clear what records he reviewed, but it is unlikely that his review included any service medical records as neither VA nor the veteran have been able to obtain these records. In his Board hearing, the veteran stated that his private neurologist told him that his brain stem was crooked from trauma. The claims file contains no contrary medical opinions, and the RO did not schedule a VA examination. The Board concludes that service connection for dysrhythmic headaches is warranted. There is competent lay evidence that the veteran experienced headaches requiring in-patient evaluation and treatment in service and that the veteran experienced symptoms of recurrent headache since discharge from service. There is medical evidence of a currently diagnosed disorder, supported by an abnormal encephalogram, and an uncontroverted medical opinion that the headache was related to trauma. Even though the occurrence of a traumatic accident in recruit training could not be confirmed, there is lay evidence of hospital treatment for headaches following the approximate date of trauma. The weight of credible evidence demonstrates that the veteran's current dysrhythmic headaches first manifested in service. As the preponderance of the evidence is at least in equipoise, the Board will apply the "benefit of the doubt" rule and grant service connection. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for dysrhythmic headaches is granted. ____________________________________________ JASON R. DAVITIAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs