Citation Nr: 18155404 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-43 960 DATE: December 4, 2018 ORDER Entitlement to service connection for headaches is denied. REMANDED Entitlement to service connection for a back problem is remanded. Entitlement to service connection for an unspecified neurological condition, claimed as “neurological sign” and numbness and tingling is remanded. FINDING OF FACT The most probative evidence indicates the Veteran’s current headache disability is not related to service. CONCLUSION OF LAW The criteria for establishing service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to August 1986 and from August 2004 to June 2007, with active duty training from February 1990 to June 1990, and additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his notice of disagreement, the Veteran’s explanation of his claims suggests his neurological sign claim involves numbness and tingling, which began after his back injury. The issues have been amended accordingly. In November 2016, the Veteran withdrew his request for a Board hearing. 38 C.F.R. § 20.704. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). 1. Entitlement to service connection for headaches The Veteran seeks service connections for headaches. In an August 2015 notice of disagreement, the Veteran stated he started experiencing headaches while stationed in Iraq, which he thought was from smoke, and that he has continued to experience headaches four to five times per week. As an initial matter, the Board finds the Veteran has been diagnosed with migraine headaches; therefore, the requirement of a current disability is met. The remaining question for the Board is whether his headaches are related to service. Upon separation from his first period of active duty, the Veteran’s July 1986 discharge examination indicated he was qualified for separation with no abnormalities noted. Service treatment records from 1989 to 2005 indicate no reported complaints or treatment for a headache condition. The Veteran’s neurological system, head, face and neck were evaluated as normal in October 1995, March 1996, October 1996, November 1997, October 1998, March 1999 and October 2002 service treatment records. In May 1999 and October 2002 VA pre-deployment examinations, the Veteran denied any medical problems. In a July 2001 VA dental health questionnaire and January 2004 entrance report of medical history, the Veteran explicitly denied frequent or severe headaches. On a July 2005 post-deployment health assessment, the Veteran reported headaches, back pain, feeling tired, difficulty remembering, but also indicated he was in good health. Subsequent treatment records show no headache complaints or treatment. A January 2006 report of medical assessment noted no headaches complaints. In a May 2006 dental health questionnaire, the Veteran explicitly denied frequent headaches. A May 2006 dental examination indicated no neurologic abnormalities, and in the accompanying report of medical history, the Veteran denied frequent or severe headaches. A January 2007 annual medication examination noted no current problems; the Veteran denied any medical problems or treatment. Similarly, a January 2007 individual medical readiness record and pre-deployment health assessment noted no health problems or deployment limitations. The Veteran’s April 2007 retirement physical revealed no evidence of headaches. Additionally, private treatment records in April 2006, June 2006, November 2006 and December 2006 reveal normal neurologic system examinations. As the medical evidence does not reflect a chronic headache disability during active service, competent evidence linking the current disorder with service is needed. In July 2015, the Veteran underwent a VA headache examination and VA Gulf War general medical examination. In each report, the discussion pertaining to the claimed headache condition was identical. The Veteran reported a history of headaches, including migraine headaches, that started at Camp Shelby in 2006, that he did not take medication at that time, but would lie down in the dark to try and sleep, and never missed work. He reported that around 2008 or 2009 he went to a clinic because he started to have headaches about two to three times per month, and nausea and vomiting. He reported he was taking medication two to three times per month when he felt the headache coming on, that the first symptom was pain behind his eyes and both temples, and that if he took the medication immediately, the pain resolved in about 35 minutes, and if not, the headache became full blown and took a few hours to resolve. The examiner diagnosed migraine headaches including migraine variants. She indicated the Veteran experienced headache pain on both sides of the head usually lasting less than one day, with the migraines occurring once every month, and that he experienced non-headache symptoms including nausea and sensitivity to light. The examiner opined the Veteran’s current headaches were less likely than not due to an exposure to environmental hazards experienced during service in Southwest Asia, concluding the Veteran did not have an “undiagnosed illness.” She further noted that a 1989 treatment record, which indicated headache related to a motor vehicle accident in 1987, subsequent to active duty, had resolved by 1989, that the Veteran had undergone subsequent deployments, and that service treatment records did not document complaints of headaches since 2006. Upon review of the record, the Board finds the competent and probative evidence shows the Veteran’s current headache disability is less likely than not related to service. In this regard, the July 2015 VA examiner’s opinion was provided following extensive review of the claims file and relevant facts, and provided a rationale that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the Board finds that the VA examiner’s opinion is probative and entitled to great weight. There is no medical opinion of record to the contrary. Although the Veteran has alleged his current headache disability began during service and have continued since that time, the Board finds such assertions less persuasive than the medical evidence of record, including only one documented complaint of a headache during active service and no evidence of headache problems on his April 2007 retirement examination. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants’ observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran’s lay evidence); see also AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As such, the Board finds the medical evidence of record to be more probative and persuasive. To the extent that the Veteran believes his current headache disability is related to service, as a lay person, the Veteran has not shown he has specialized training sufficient to render such an opinion. In this regard, the etiology of headaches is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his headaches is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. Moreover, as the evidence shows a diagnosed headache disability, the provisions of 38 C.F.R. § 3.317 pertaining to service connection as an undiagnosed illness are not for application. Accordingly, the preponderance of competent, credible and probative evidence is against the claim, and entitlement to service connection for headaches is denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded 2. Entitlement to service connection for an unspecified neurological condition Upon review of the record, the Board finds an addendum opinion is needed with respect to the claim for service connection for a back condition. Although the record contains a July 2015 VA opinion suggesting the Veteran’s low back disability is not related to service, the opinion did not contain adequate rationale for the opinion provided. Accordingly, a VA addendum opinion is needed. Relevant ongoing medical records should also be requested. The claim for an unspecified neurological condition, claimed as neurological sign and numbness and tingling, is intertwined with the back claim and must also be remanded. The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed back and neurological disability. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, provide the claims file to a VA examiner to obtain an addendum opinion as to whether it is at least as likely as not (50 percent probability or greater) that the claimed low back disability arose during service or is otherwise related to service. The examiner should explain why or why not, to include addressing service treatment records indicating complaints of and treatment for low back pain, and the Veteran’s contentions of continuous back pain since service. A rationale for the opinions expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel