Citation Nr: 1325375 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-22 647A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for headaches, claimed as residuals of inservice concussion. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to June 1952. He subsequently had unverified training in the Air Force Reserves. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an August 2009 rating decision of the VA Regional Office (RO) in Los Angeles, California that denied service connection for headaches as a residual of inservice concussion. The Veteran was afforded a Travel Board hearing in March 2013 before the undersigned Veterans Law Judge sitting at Los Angeles, California. The transcript is of record. The case was remanded for further development by Board decision in April 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have had a head injury or concussion in service. 2. Headaches were first clinically indicated many years after discharge from service. 3. The more competent and probative evidence of record finds that headaches are not related to service. CONCLUSION OF LAW Headaches were not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that service connection is warranted for a headache disorder that is related to a concussion or head trauma while serving on active duty. He presented testimony on personal hearing in March 2013 to the effect that in 1952, while working on a jet, the hydraulic engine exploded inches over his head. He contends that he has experienced headaches since that inservice event. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in June 2009 of the information and evidence needed to substantiate and complete the claim, to include notice of what evidence the claimant could provide in support of the claim, the evidence VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording VA examinations. These examinations are adequate to render a determination as to the issue on appeal. The Veteran also presented testimony on personal hearing in March 2013. The entire claims folder has been carefully reviewed. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim ready to be considered on the merits. Finally, during the March 2013 Board hearing, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2). Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Certain chronic diseases, to include organic disease of the nervous system, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012; 38 C.F.R. §§ 3.307, 3.309 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that 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 (2012). Factual Background Service medical records reflect that in January 1950, the Veteran was seen the dispensary for complaints of nausea and some gagging with headache. He thought it might have been some beans he ate the night before. Medication prescribed. In February 1952, he complained that his eyes hurt, and that he had a head cold, frontal headache and coughing. He was observed to have a "brilliant" red throat. Epidemic pharyngitis diagnosed. On examination in June 1952 for discharge from service, the head and neurologic status were evaluated as normal. The record reflects that the Veteran filed a claim in October 1955 for an eye disorder. He wrote at that time that he had sustained injury to the eyes in [1949 or 1951] when jet fuel blew up in his face with resulting heat irritation. He related that he had narrowly escaped an explosion and that his eyes were damaged. There was no mention of headaches. The Veteran was afforded a VA compensation examination in January 1956. He indicated that he has gone to a number of doctors for various complaints and conditions but did not refer to headaches. The head was evaluated as normal. Neurologic status was normal. On Air Force Reserve examinations in October 1973 and July 1974, the Veteran denied head injury and frequent or severe headaches. Neurologic status was evaluated as normal on both occasions and no pertinent defects were recorded. He indicated that he was on no medications. VA outpatient clinical records dating from November 1999 reflect that the Veteran had a history of giant cell arteritis and had been placed on Prednisone for six months with a view towards maintaining him on this regimen for an additional year. In May 2000, it was recorded that he had biopsy-proven temporal arteritis that had been remission in but that he currently had a high ESR [erythrocyte sedimentation rate]. The appellant obtained frequent follow-up in this regard and had complaints that include chronic mild to moderate infrequent and/or episodic headaches. In January 2002, it was reported that symptoms of PMR [polyneuralgia rheumatic] and headaches that were associated with increased ESR for which he was recently started on Methotrexate to allow for further tapering of Prednisone. In December 2002, it was reported that attempts to taper Prednisone below 10 in the past had resulted in elevation of ESR and/or mild recurrence of headaches in the occipital area. A June 2003 outpatient clinic note contains a notation of biopsy-proven temporal arteritis with chronic elevations of ESR with tapering of Prednisone in the past with intermittent headaches. Prednisone was decreased in September 2003. The Veteran was advised that if there was a worsening of intermittent headaches or eye pain, he should take 60 milligrams of Prednisone immediately. In June 2004, the Veteran related that an increased Prednisone dosage relieved his headaches. When dosage was tapered, headaches increased. A VA outpatient clinic notes dated in January 2007 reported that the appellant had been off both Prednisone and Methotrexate since CABG [coronary artery bypass grafting] in June 2005. He denied severe headaches and said that he did have an occasional headache/neck stiffness that was not similar to his tension headaches which he had had before being diagnosed with temporal arteritis. A December 2007 record noted that the appellant had had headache and eye pain for which he had gone to the emergency room that had been diagnosed as probable tension headache for which he was prescribed Ibuprofen. In June 2008, it was reported that he had not had a return of giant cell arteritis but did have headaches that were stress related and resolved with conservative measures. The VA physician stated that conservative measures did not relieve the headaches associated with temporal arteritis and he was advised to keep 60 milligrams of Prednisone on hand. The Veteran was seen in VA social work consultation in June 2009 and indicated that he was seeking social work support for a service connection appeal process. He related that he had experienced a traumatic head injury concussion in 1951 at Kirtland Air Force Base when a hydraulic engine he was working on exploded. He stated that since the explosive concussion, he had experienced symptoms that included chronic headaches. In July 2009, it was noted that among other things, the appellant had had persistent neck pain and headaches over the past six months that were likely secondary to cervical degenerative disc disease and paraspinal muscle spasm. The Veteran was afforded a VA examination in July 2012. He complained that he had had headaches since 1950 and attributed this to when a jet engine exploded during testing. He related that temporal arteritis was diagnosed in 1999 with symptoms that included headaches. Following examination, temporal arteritis was diagnosed. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event or illness. The rationale provided was that there was no evidence to support any causal relationship between headaches in 1952 and temporal arteritis in 1999. The examiner stated that the headaches experienced in service were not temporal arteritis. Pursuant to Board remand, the Veteran underwent another VA examination in May 2013. The examiner indicated that the claims folder was reviewed. Clinical history dating from service was recited. It was noted that the Veteran provided history of onset of tension headaches in the 1950s. He related that he had a headache every day after discharge from active duty and had gone to a chiropractor for treatment. History of an inservice jet engine explosion just inches from his head was recited. It was noted that the appellant's discharge summary did not document a headache history and that on a re-enlistment examination, he had denied frequent or severe headaches. A physical examination was performed and a CAT scan of the head was obtained. Following examination, the examiner opined that tension headaches were less likely than not incurred in or caused by the inservice injury, event or illness, including an explosion of a hydraulic jet engine. The examiner further noted that temporal arteritis was diagnosed in 1999 and elaborated upon the pathologic process. It was reported that giant cell (temporal) arteritis was a chronic vasculitis of the large and medium-sized vessel that occurred among individuals over 50, and most prominently involved the cranial branches of the arteries originating from the aortic arch. It was related that its etiology and pathogenesis were unknown, but that observations suggested that increasing age, a unique genetic and ethnic background and infection might have a causative role. The examiner opined that that temporal arteritis did not have its onset during the Veteran's active military service. Legal Analysis The Veteran asserts and has presented testimony to the effect that he has chronic headaches related to a concussive injury in service, or that they are otherwise of service onset for which service connection should be granted. Service treatment records do indeed reflect that he was seen for symptoms that included headaches that were associated with other conditions, including epidemic pharyngitis in 1952. The appellant's account of injury to the face while working on a jet in a claim to VA in 1955 is deemed to be credible because it is more contemporaneous to service and undegraded by the passage of time. However, he clearly stated at that time that he narrowly missed an explosion, although there was some injury to his eyes. He did not report any other symptoms associated with the injury except for the eyes. The service treatment records do not refer to any treatment for headaches associated with blast injury, nor is it shown that he ever had a primary diagnosis of headaches. A headache condition was not noted on service discharge examination report in June 1952. On post service VA examination in 1956, the Veteran did not at any time indicate that he had headaches although he wrote that he was under multiple physicians' care for a number of other medical conditions. The record reflects that more than 20 years after discharge from active duty, he clearly denied head injury and frequent or severe headaches in 1973 and July 1974 when being examined for Air Force Reserve purposes. There is no documentation evidencing treatment for headaches until 2000, almost half a century following discharge from active duty. In view of such, continuity of any inservice symptomatology is not demonstrated. See 38 C.F.R. § 3.303. VA clinical records dating from 1999 reflect that the appellant was diagnosed with giant cell or temporal arteritis and clearly indicate that associated symptoms included headaches. More recently, VA outpatient records reflect that he carries a diagnosis of tension headaches which he relates to stress. A VA clinician has also linked headaches to cervical degenerative disc disease. However, neither temporal enteritis, tension headaches nor cervical degenerative disc disease was shown in service, nor were any of any organic diseases of the nervous system manifested within one year of discharge from active duty. Therefore, service connection is not warranted on a presumptive basis. The Board has carefully considered the appellant's lay statements, testimony and history to the effect that headaches are related to service and to a head injury he sustained therein. A layman is competent to report what he has experienced through the senses. See Jandreau v. Nicholson, 492 F. 3d. 1372 (2007); see also Layno v. Brown, 6 Vet.App. 465, 470 (1994), However, while lay evidence must be considered when a Veteran seeks disability benefits, the Board is obligated to determine whether the lay evidence is credible. Similarly, the Board can weigh the absence of contemporaneous medical evidence against the lay evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this instance, it is found that the normal examination at service discharge, the lack of any complaints on the post service claim in 1955 and VA examination in 1956, the unequivocal denial of head injury or headaches more than 20 years after service, and no evidence of headache symptomatology or treatment for almost five decades after discharge from service are far more probative than the Veteran's remote statements and testimony of in-service onset. In this regard, the Board concludes that the Veteran has not been a reliable historian and that his account of headaches deriving from concussive trauma in service is self-serving, lacks veracity and is not credible. The more probative evidence establishes that headaches developed many years after active duty and are unrelated to service. Similarly, evidence of a prolonged period without complaint and the amount of time that has elapsed since military service can be considered as evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this regard, the Board defers to the opinions of the VA skilled clinical professionals who determined in 2012 and 2013 that neither headaches nor temporal enteritis was likely as not related to service. These opinions are far more probative than the appellant's more recent statements and testimony to the contrary. There is no reliable evidence in the record to show other than any complaints of headache in service resolved and did not result in a chronic disorder. See 38 C.F.R. § 3.303. In summary, the Board concludes that there is no credible, competent and probative evidence showing that headaches are related to service or to any incident therein. The Board thus finds that the preponderance of the evidence is against the claim and service connection for headaches is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). ORDER Service connection for headaches, claimed as a residual of inservice concussion, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs