Citation Nr: 1319134 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 05-24 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1984 and August 1986 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDING OF FACT A headache disorder began in service. CONCLUSION OF LAW The criteria for service connection of a headache disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. An August 1983 service treatment record reflects the Veteran's history of throbbing headaches. After examination, he was diagnosed with left otitis media. A January 1988 service treatment record reflects the Veteran's history of headaches and soreness due to a motor vehicle accident the previous night. After examination, he was assessed with bruise to the head. January 1990 and September 1995 service examination records reflect normal clinical findings and negative histories as to frequent or severe headache. An October 1997 service treatment record reflects the Veteran's three day history of symptoms including headaches. After examination, he was diagnosed with trapezius muscle strain. A February 1998 service treatment record reflects the Veteran's history of symptoms including headaches. After examination, he was diagnosed with sinusitis. A June 1998 "Report of Medical History" reveals the Veteran's history of frequent or severe headaches. A May 1999 examination record reveals the Veteran's negative history as to frequent or severe headaches and normal clinical findings for all relevant systems. A February 2000 service treatment record reflects the Veteran's history of symptoms including headaches for five days. After examination, the Veteran was assessed with an upper respiratory infection. A May 2001 separation examination record reflects the Veteran's negative history as to frequent or severe headaches. A June 2001 service treatment record reflects the Veteran's history of headaches since a motor vehicle accident earlier that day. The Veteran also reported a history of "bad" headaches in the heat. He was diagnosed with headache and contusion. Post-service medical records reflect histories of headache in January, March, and September 2008 and March 2010. The records do not reveal a diagnosis of a headache disorder, though the Veteran reported "tension headaches" in September 2008. The first diagnosis of record of a headache disorder is made by a February 2011 VA examiner, who diagnosed tension headaches. The Veteran initially reported headaches since the 2001 motor vehicle accident. See July 2004 VA orthopedic examination; February 2011 VA examination record. However, he has also reported headaches since entering the Navy in 1986, indicating that he believes the headaches are due to welding in service. The record indicates that the Veteran worked as a welder during and since separating from service. The record includes negative nexus opinions from a VA examiner but they have limited probative value because the examiner did not address all of the in-service complaints of headaches and provided inadequate findings as to whether the Veteran experienced a headache disorder (as opposed to distinct episodes of headaches) during service. Thus, the Board obtained another opinion from a neurologist to determine whether it is less likely, as likely, or more likely that a headache disorder had its onset in service or is causally related to service, to include the motor vehicle accident in June 2001. The neurologist, who indicated review of the claims file, believed the Veteran had tension-type headaches. The neurologist indicated that tension headaches "occur in circumstances that predispose to the chronic contraction of nuchal and scalp muscles such as stress, sinusitis, flu, neck trauma (e.g. whiplash injury) and prolonged maintenance of fixed neck postures." The neurologist found it more likely that the Veteran's headache disorder had its onset in service but less likely that the headache disorder was causally related to service. The neurologist added that it was more likely that the in-service histories of headaches, including the one during hot weather, were symptoms of a headache disorder as opposed to acute manifestations of injury or distinct conditions. The neurologist's opinion is probative evidence that the Veteran has a headache disorder which began during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion's probative value is determined by whether it is supported by a detailed rationale). The neurologist provided an explanation for the opinion, and it is consistent with the evidence of headaches during service. In the absence of probative evidence that the Veteran does not have a headache disorder or that the headache disorder did not begin during service, service connection is warranted. VA has a duty to notify and assist claimants for benefits. The decision above grants service connection for a headache disorder. As such, there is no further need to discuss compliance with the duties to notify and assist. (CONTINUED ON NEXT PAGE) ORDER Service connection for a headache disorder is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs