Citation Nr: 1802932 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-00 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from June 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2012, the Veteran presented testimony during a videoconference hearing and a transcript of the hearing has been associated with the claims file. In July 2017, the Veteran was notified that the Veterans' Law Judge that conducted that hearing had retired and he could have another hearing if he requested it within 30 days. To date, the Veteran has not replied to the July 2017 letter and therefore the Board finds that it can adjudicate the appeal without holding another hearing. In December 2014 the Board, among other things, reopened and remanded the claim of entitlement to service connection for headaches. In August 2016 the Board, among other things, again remanded the claim of entitlement to service connection for headaches. FINDING OF FACT The preponderance of the evidence of record shows that headaches became manifest after service and are not related to service nor caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that service connection is warranted for headaches because they were caused by an in-service motor vehicle accident that occurred in September 1974 in Jacksonville, North Carolina and/or by his in-service noise exposure. In the alternative, it is asserted that service connection is warranted for the Veteran's headaches because they are due to the pain caused by his service-connected left shoulder disability. Service connection is warranted where the evidence shows that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a 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). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the post-service record shows the Veteran being diagnosed with migraine headaches. See, e.g., VA examination dated in September 2016. Additionally, police reports confirm the fact that the Veteran in September 1974 was involved in a single car motor vehicle accident when the car that he was driving at approximately 85 miles per hour left the road and turned over. Moreover, service treatment records show that the Veteran was hospitalized for five days in September 1974 following a motor vehicle accident with memory loss as to the events surrounding the accident with multiple facial contusions and abrasions and a diagnosis of, among other things, a cerebral concussion. However, as to service connection under 38 C.F.R. § 3.303, the Veteran's service treatment from his five days of hospitalization in September 1974 are negative for complaints, diagnoses, or treatment for headaches, despite the memory loss and diagnosed cerebral concussion. Moreover, the other service treatment records, including the January 1976 separation examination, are negative for complaints, symptoms, treatment, or a diagnosis of headaches. In fact, when examined in January 1976 the examiner opined that the Veteran's neurological examination was normal and this medical opinion is not contradicted by any other medical evidence of record. Similarly, the record does not show that the Veteran had a continued problem with headaches in and since service. In fact, as reported above, the treatment records for his hospitalization following the motor vehicle accident and the subsequent January 1976 separation examination are negative for complaints, symptoms, treatment, or a diagnosis of headaches. Likewise the post-service records are negative for a history, complaints, and/or a diagnosis of headaches until 1978. See October 1978 VA examination (". . . he gets a severe headache at the base of his skull, probably related to muscle spasms of the [non service connected] cervical spine . . ."). In this regard, the Board finds the fact that at the Veteran's first post-service VA examination, dated in November 1976, the claimant neither reported a history of headaches and the examiner did not diagnose headaches weighs against the appellant's claim that his documented in-service motor vehicle accident caused headaches which continued since that time. Id. Furthermore, the Board finds that the most probative evidence of record shows that the Veteran's post-service headaches are not due to his military service. See 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In reaching this conclusion, the Board has not overlooked the February 1981 letter from Dr. Philip Chow. However, the Board finds that the Veteran's claim that his current headaches are due to his in-service motor vehicle accident is not probative even when they are recorded in a letter prepared by his physician. See Davidson; also see LeShore v. Brown, 8 Vet. App. 406 (1995). Likewise, the Board has not overlooked Dr. Charles Ball's October 2012 letter in which he reports that the Veteran relates his headaches to his military service to include the in-service motor vehicle accident and noise exposure and the opinions that "[s]ince his headaches do relate back to the time of a motor vehicle accident this is certainly a possibility." However, the Board also does not find Dr. Ball's letter probative because the Board is not required to accept evidence that is simply information recorded by a medical examiner unenhanced by medical opinion; it is based on a faulty facture premise (i.e., medical records from the Veteran's treatment following his motor vehicle accident document complaints of headaches); and the opinion is too speculative to be credible. Id; also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Likewise, the Board has not overlooked the lay claims from the Veteran and other lay persons including his mother regarding his current headaches being due to his military service. See Davidson, supra. However, the Board finds that they are not competent to provide a nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question. Id. On the other hand, the Board finds that the April 2017 VA examiner's opinion that the Veteran's headaches were not caused by service, to include his documented motor vehicle accident, both competent and credible because it was obtained from a medical professional for the express purpose of ascertaining the origin of his headaches, the opinion was provided after a review of the record and examination of the Veteran, and the opinion is supported by citation to medical evidence found in the claims file. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's headaches did not manifest during military service, did not continue since service, and was not caused by a disease or injury while on active duty. See 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303. Likewise, as to service connection under 38 C.F.R. § 3.310, the Board finds that the most probative evidence of record shows that the Veteran's headaches are not caused or aggravated by the pain caused by his service-connected left shoulder disability. See 38 C.F.R. § 3.310; Allen. In reaching the above conclusion, the Board has not overlooked the July 1979 letter from Dr. Porter in which it was reported that the appellant had headaches due to his left shoulder pain. However, the Board does not find Dr. Porter's opinion probative because it is not supported by any rational. See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Likewise, the Board has not overlooked any lay claims from the Veteran and other lay persons regarding a relationship between the service-connected left shoulder disability and his headaches. See Davidson, supra. However, the Board finds that they are not probative because they are not competent to provide a nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question. Id. On the other hand, the Board finds that the April 2017 VA examiner's opinion that the Veteran's headaches were not cause and/or aggravated by the pain caused by his service-connected left shoulder disability both competent and credible because it was obtained from a medical professional for the express purpose of ascertaining the origins of the Veteran's headaches, the opinion was provided after a review of the record on appeal and an examination of the Veteran, and the opinion is supported by citation to medical evidence found in the claims file. See Owens, supra. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's headaches were not caused or aggravated by a service-connected disability. See 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for headaches and the claim is denied on a direct and secondary basis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. ORDER Service connection for headaches is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs