Citation Nr: 1755053 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-27 373A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from August 1989 to October 1992, from August 1997 to April 1998, from February 2000 to October 2000, and from June 2006 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. This case was previously before the Board in July 2017 where service connection for depression was denied and the issue of entitlement to service connection for headaches was remanded for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Without good cause, the Veteran failed to appear for a VA examination that had been scheduled for the purpose of determining the nature and etiology of his headaches. 2. The preponderance of the evidence fails to establish that the Veteran's headaches are etiologically related to service. CONCLUSION OF LAW The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Pursuant to the Board's July 2017 remand, the RO arranged for a VA examination which the Veteran failed to report. The record does not indicate any correspondence was returned undelivered. At this time, the Veteran has not provided good cause for his failure to report. See 38 C.F.R. § 3.655 (2017). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). There has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. 38 C.F.R. § 3.327(a). Absent a showing of good cause, a veteran's failure to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. See 38 C.F.R. § 3.655 (2017); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Further, the duty to assist is not a one-way street. If a claimant wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Headaches The Veteran seeks service connection for headaches, which he contends is warranted based on the fact that he suffered a head injury during an automobile accident while on active duty. See Appellant's Briefs dated June 2017 and November 2017. Service treatment records document that the Veteran was involved in a motor vehicle accident in August 2006 while on active duty. Physical examination of the head showed no evidence of trauma. Three days following the car accident, he was treated for multiple musculoskeletal complaints and reported "blurred vision with headaches". See Service treatment records of August 2006. Posts-service VA treatment records of September 2007 through February 2008 do not indicate any ongoing treatment, findings, or complaints of a chronic headache condition. Records also do not document any symptomatology reported by the Veteran related to headaches. Of note, a November 2007 VA CT brain scan revealed normal findings. See Shreveport VAMC records. VA treatment records of April 2010 reflect mental health notation regarding recent fall with reports of ongoing headaches since that time. A contemporaneous CT brain scan again revealed normal findings. See Houston VAMC records. In September 2012, the Veteran was afforded a VA examination for his headaches. The examiner concluded that the current headaches are less likely related to the head injury during the auto accident of 2006. In the rationale, the examiner explained that the Veteran's non-contrast CT of the brain in 2007 and 2010 were both found normal. The non-contrast CT of the brain in 2012 was abnormal, which the examiner determined was not related to the auto accident. However, in July 2017, the Board found the above opinion inadequate for purposes of evaluating the claim for service connection as the examiner's opinion did not reflect consideration of the Veteran's lay statements of experiencing headaches since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In that regard, and specifically to address the etiology of the Veteran's headaches, VA sought further medical opinion evidence in this case. See July 2017 Board Remand. But, the Board observes that VA's duty to assist has been frustrated in this case by the Veteran's failure to report for such VA examination needed to produce evidence essential to his claim for service connection. If the Veteran believes he is entitled to service connection for his headaches, he must at least fulfill his minimal obligation of reporting for a VA medical examination when a reexamination has been authorized and scheduled. With that said however, the RO obtained an addendum opinion from a VA physician in August 2017. Based on a thorough review of the Veteran's claims file and diagnostic tests, which the examiner found adequate for completing his opinion, the VA physician opined that it was less likely that the Veteran's current headaches condition is related to an injury or event in service. Citing to medical literature, the examiner noted that "96 percent of mild [traumatic brain injury] symptoms resolve within one year and symptoms are non-progressive and do not worsen, and that most of the symptoms ascribed to head injury may be explained as a symptom of posttraumatic stress disorder." In relation to the Veteran's case, the examiner opined that "any past head trauma from in-service [motor vehicle accident] would be unlikely to cause [headaches] starting in about 2010, especially since the headaches are contemporaneous in onset with new head trauma." Lastly, the examiner acknowledged the Veteran's report of ongoing symptoms but remarked that as a lay person, the Veteran is not competent to make an etiological attribution of such symptoms without contemporaneous medical evaluation, and that the examiner to make such attribution based solely on lay statements, would be speculative. The Board assigns significant probative value to the August 2017 medical opinion as such findings support the conclusion that there is no reliable evidence linking the Veteran's current headaches to service. In a well-grounded opinion and thorough rationale, the examiner pointed out the absence of medical evidence to support a chronic or ongoing headache condition. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's current headache condition and the car accident in service, where physical examination of the head established no evidence of trauma. The Board also observes that the 2017 medical opinion stands uncontradicted by any other evidence found in the record and is significantly probative in determining whether the Veteran has substantiated his claim for service connection. Lastly, the Board has considered the Veteran's assertions that his headaches are related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of his claimed headache condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, as pointed out by the 2017 VA examiner, as a layperson, the Veteran is not competent to opine on a complex medical question of etiology, as this requires medical expertise. The Board finds the Veteran's statements not competent medical evidence for this purpose. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Therefore, his assertions of etiology, standing alone, have little probative value and the Board assigns more weight to the medical opinion provided by the VA examiners. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection of headaches. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for headaches is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs