Citation Nr: 18155267 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-35 363 DATE: December 4, 2018 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for vertigo is denied. Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for migraine and tension headaches is denied. FINDINGS OF FACT 1. The Veteran’s low back disability was not incurred in service, arthritis of the lumbosacral spine was not manifested to a compensable degree within one year of separation from service, and the low back disability is not otherwise caused by service. 2. The preponderance of the evidence is against finding that a disability manifested by vertigo began during active service or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that a TBI disability was incurred during active service or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that a headache disability began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 3. The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for entitlement to service connection for migraine and tension headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from November 1971 to September 1975. Service Connection 1. Entitlement to service connection for a low back disability 2. Entitlement to service connection for vertigo 3. Entitlement to service connection for a traumatic brain injury (TBI) 4. Entitlement to service connection for migraine headaches Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). To establish a right to compensation for a present disability, an appellant must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has low back, vertigo, TBI, and headache disabilities that began during service. The service treatment records document that in June 1972 the Veteran complained of headaches and backaches. He stated that he had passed out on 3 occasions since age 10. The headaches had been present since the most recent black out, which had occurred about 1 week previously. The episodes were always transient (lasting only a few seconds), but on the last occasion the Veteran had fallen and hit his left temple area and immediately returned to consciousness. Since then he had experienced headaches where he had hit his head, but had not previously sought treatment because he thought the headaches would go away. The Veteran had experienced backaches for the previous 3 years on the right side, but not at the time of that treatment. The impression included postural low back pain. In April 1973, the Veteran was seen for recurrent low back pain without radiation. He was tender to palpation over the paraspinal muscles. The impression was muscle spasm and he was put on light duty. In September 1973, the Veteran stated that he had hurt his back the previous day playing football. There was noted painful range of motion. There was no mention of head injury. During a subsequent August 1977 Report of Medical Examination for the Reserves, the Veteran had normal examination of the spine, neurologic system, and head. In a contemporaneous Report of Medical History, the Veteran stated that his health was good and denied a history of frequent or severe headaches, dizziness or fainting spells, periods of unconsciousness, or recurrent back pain. The Veteran’s September 2012 claim indicated that his back and migraine headache disabilities began in 1972 and that his TBI and vertigo / dizziness began at the same time and were due to playing football while on active duty. In July 2010, while establishing care with VA the Veteran reported a history of migraines, but did not discuss a TBI, low back, or vertigo symptoms. In May 2011, the Veteran chronic back pain and stiffness without any change. In May 2011, December 2011, and October 2012, the Veteran denied any headaches or vertigo. That said, in October 2012, the Veteran complained of continued dizzy spells and reported a head injury while playing football in the 1970s and a period when he had black out spells. The dizziness and black outs stopped for a period. The dizziness had reoccurred, but not the black outs (although the Veteran reported having been closing to blacking out). The dizzy spells occurred during the day twice per week and lasted for up to 15 to 30 minutes. In November 2012, the Veteran was notified that a CT scan of his head was normal. In February 2013, the Veteran complained of new onset low back pain with no known injury. A March 2013 record indicated that the Veteran had experienced a right lower backache for the past 5 weeks. An MRI of the spine was ordered. A June 2013 addendum noted that there was nothing in the MRI of the lumbar spine for anything to cause the Veteran pain. In August 2013, the Veteran reported incurred a concussion while playing football in service and an MRI of the brain was ordered due to a possible TBI. He described a history of dizziness since 1972 and isolated episodes of true vertigo with whirls and loss of consciousness. He last experienced such an episode in March or April 2013. The impression was vertiginous migraines by history. A recent CT scan of the head had been unremarkable. In his May 2014 notice of disagreement, the Veteran stated that he had played football for the Marine Corps during service and injured his back while playing. He noted that service treatment records documented at least 4 treatments for back pain and muscle spasms during active service and that these treatments demonstrated in-service incurrence of a low back disability. In a September 2014 statement, the Veteran reiterated his belief that he sustained a chronic back condition during service and discussed how he was treated for tension headaches in service and had continued to experience tension headaches after discharge. A July 2017 VA medical opinion is of record regarding the Veteran’s headache claim. The reviewing neurologist indicated review of the claims file and noted the in-service record noting complaints of headaches after falling and hitting his left temple area with resulting headache in the area where his head hit. He noted that during a Report of Medical Examination for the Marine Corps Reserve, a neurological examination was normal and at that time the Veteran specifically denied a history of frequent or severe headaches. The Veteran has reported treatment for his headaches from 2011 and, as such, there was no evidence of complaints or treatment for headaches in the 29 years between separation from service in 1975 and seeking VA treatment in 2004. The neurologist noted that post-traumatic headaches would begin at the time of or shortly following the inciting trauma. Typically, the headaches would resolve over the following weeks or months, but could become chronic in nature. There was no evidence of chronicity in the service treatment records or evidence of a headaches disorder for years following separation from service. As such, the neurologist found that it was unlikely that the Veteran’s current headache complaints were related to his fall in service. A July 2017 VA medical opinion regarding the Veteran’s low back claim also is of record. The examiner discussed the medical evidence of record, but noted that during service the Veteran had postural back pain, back spasms, and a tender coccyx. The examiner noted that all of these were acute and self-limiting conditions. The problems were not noted on later examination. Post-service spinal stenosis due to disc bulging was a slowly progressive condition that occurred with aging. Unless there were episodes of acute herniation or other significant injury the development of the stenosis was more likely “degenerative with aging.” As such, the examiner found that the Veteran’s current back disability was less likely than not incurred in or caused by the in-service complaints of back problems. The question for the Board is whether the Veteran has current low back, vertigo, headache, and/or TBI disabilities that began during service or are at least as likely as not caused by an in-service injury, event, or disease. As an initial matter with respect to the low back claim, in June 1972 the Veteran reported low back pain that pre-existed service. As a low back disability was not documented at entrance into service and there is otherwise insufficient evidence to determine that there was a low back disability that pre-existed service the Veteran will be presumed to have entered service in sound condition with respect to his low back. 38 U.S.C. § 1111 (2012). The evidence demonstrates that the Veteran has current headache and low back disabilities. In addition, there are VA treatment records that document “true” episodes of vertigo and, as such, the Board will presume a vertigo disability at some point during or in close proximity to the appellate time period. As to the Veteran’s claimed TBI, diagnostic testing has not shown evidence of a current or past TBI related to service. Even were the Board to presume current diagnoses as to each of the claimed disabilities, however, the Board concludes that the preponderance of the evidence weighs against finding that the claimed disabilities began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The evidence establishes that the Veteran was not diagnosed with a low back, vertigo, headache, or TBI disability until (at most) multiple years after his separation from active service. The Board acknowledges the Veteran’s current explicit claims of ongoing low back and headache symptoms from service and the implicit assertions of the same with respect to the vertigo and TBI claims. While the Veteran is competent to report having experienced physically observable symptoms, in this case the evidence does not support a finding of a continuity of symptoms from service, based on the records wherein the Veteran denied a history of recurrent back pain, dizziness or fainting spells, periods of unconsciousness, or frequent or severe headaches after separation from active service and prior to entering Reserve service. The Board finds it reasonable to conclude that had the Veteran been experiencing ongoing symptoms related to his currently claimed disabilities from service that he would have so reported such symptoms when specifically asked about them, rather than denying any such problems. As such, the Board does not find his current claim of continuity of symptoms regarding his current claims to be less than credible and to be significantly outweighed by the medical evidence of record. Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has “the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence”). Further, the July 2017 VA medical opinions concluded that the Veteran’s low back and headache disabilities were not at least as likely as not related to an in-service injury, event, or disease. The rationales were that the Veteran’s current low back disability was due to the natural aging process in the absence of credible continuity of symptoms and that the headache disability did not have its onset for decades after service. The medical professionals’ opinions are probative because they are based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his claimed disabilities are related to an in-service injury, event, or disease, including multiple football injuries, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and/or interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. The Board also has considered whether service connection would be warranted for the Veteran’s low back disability pursuant to the provisions of 38 C.F.R. § 3.303(b) (2018), based on chronicity and continuity. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board recognizes that arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a). That said, 38 C.F.R. § 3.303(b) clearly indicates that, “This rule does not mean that any manifestation of joint pain... in service will permit service connection of arthritis... first shown as a clearcut clinical entity, at some later date. 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.’” In this case, the Veteran specifically denied a history of recurrent back pain in 1977 and had a contemporaneous normal examination of the spine, which clearly indicates that there was not a continuity of back problems from service. As such, service connection based on the provisions of 38 C.F.R. § 3.303(b) is not warranted. (Continued on the next page)   In summary, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel