Citation Nr: 18160960 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-43 440 DATE: December 28, 2018 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is dismissed. Entitlement to service connection for memory loss, to include as secondary to TBI, is dismissed. Entitlement to service connection for headaches, to include as secondary to TBI, is granted. FINDINGS OF FACT 1. At a December 2018 Board hearing, prior to the promulgation of a decision as to the issues of service connection for TBI and memory loss, to include as secondary to TBI, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issues is requested. 2. Resolving doubt in the Veteran’s favor, headaches had onset during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for TBI, and service connection for memory loss, to include as secondary to TBI have been met. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria to establish service connection for headaches to include as secondary to a TBI are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran appeared at and testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in December 2018. The transcript from the hearing has not yet been associated with the file, as this appeal is being adjudicated under the One Touch program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Service Connection 1. Entitlement to service connection for a TBI 2. Entitlement to service connection for memory loss, to include as secondary to TBI Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 20.204. At the December 2018 Board hearing, the Veteran, through his representative, expressly withdrew his appeal for entitlement to service connection for TBI and service connection for memory loss, to include as secondary to TBI. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he/she was requesting a withdrawal as to those appeals. The undersigned notified the Veteran that he would have to file a new claim for compensation if he wished to address these claims again. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal on this matter, and the issues are dismissed. 3. Entitlement to service connection for headaches, to include as secondary to TBI Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When 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. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that his current headaches are a result of TBIs that he sustained in service. The Veteran’s service treatment records (STRs) show that the Veteran had three instances of head trauma. In September 1985, the Veteran was seen in the emergency room after being hit in the head while playing football. The Veteran complained of pain to the head secondary to trauma, and was given a diagnosis of head trauma with a possible loss of consciousness. The Veteran also reported headaches at the time. As a result of the incident, the Veteran was determined to incur a concussion in the line of duty (LOD). In an August 1986 STR progress note, the Veteran was treated for being in a motor vehicle accident (MVA) in which he experienced a loss of consciousness. At the time, the Veteran complained of neck pain and was noted to have memory deficit. The Veteran’s final diagnosis was MVA with concussion and loss of consciousness. A November 1987 Line of Duty Determination showed that the Veteran was playing football and incurred a head concussion. In a December 2013 letter, the Veteran’s private physician indicated that the Veteran had past concussion type symptoms with frequent headaches and memory difficulty and retention. The physician also noted that the condition is permanent and that appeared associated with injuries while on active duty. A March 2014 VA examination was conducted for TBI. The Veteran had a diagnosis of TBI. Upon examination, the Veteran was noted to not have subjective symptoms or residuals attributable to a TBI. The examiner noted that the Veteran has had headaches that started in 1989 and that they were not related to TBIs. A March 2014 Headaches (including Migraine Headaches) Disability Benefits Questionnaire (DBQ) was completed. The Veteran had a diagnosis of tension headaches, with a date of diagnosis in 1993. The DBQ indicated that the Veteran developed daily headaches about two years after discharge, with one time per week, them being worse with nausea and occasional vomiting. The Veteran described his headache pains as pulsating or throbbing, on both sides of his head. He stated he also experienced nausea, vomiting, sensitivity to light. At the December 2018 Board hearing, the Veteran testified that he first sought private treatment for his headaches in 1993, but that was not when the headaches first began. The Veteran further stated that the headaches began after the second in-service incident and that he has continued to have headaches ever since. The Veteran reported that he was taking over the counter medication and prescription medication for his headaches. Specifically, the Veteran reported that he takes Maxol when his headaches are really bad, such as when they flare-up. After a thorough review of the record, the Board resolves reasonable doubt in the Veteran’s favor and finds that service connection for headaches is warranted. First, the present disability element of service connection is satisfied. The VA examiner in March 2014 found that the Veteran had tension headaches. This finding was echoed by a private treatment provider in a December 2013 letter. Second, the in-service element of service connection is met. As noted above, the Veteran complained of headaches after a head injury in September 1985. The Veteran subsequently suffered two other head injuries in August 1986 and November 1987, both of which resulted in concussions. These records are consistent with the Veteran’s statements that he suffered head injuries in service. Regarding the third element, the nexus element, the Board resolves reasonable doubt in the Veteran’s favor. Initially, the Board finds that the March 2014 Headaches DBQ report inadequate because the examiner did not provide a nexus opinion as to whether the Veteran’s headaches were related to active service. Moreover, it did not address the Veteran’s private physician letter from December 2013 indicating that the Veteran had past concussion type symptoms with frequent headaches and memory difficulty and retention, also noting that the condition is permanent and that it appeared associated with injuries while on active duty. The Veteran’s STRs also showed that he complained of headaches after the injury he sustained in September 1985. The Veteran has also provided competent and credible testimony that he first sought private treatment in 1993, but that that was not when his headaches began. He further testified that his headaches began in service and that they have continued since service. The Veteran has been prescribed medication to treat his ongoing headaches. As noted above, he is competent to report these symptoms and the Board has found them credible as they have been consistent. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptoms); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the most probative evidence of record demonstrates that headaches began during service and have existed since that time. With reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran’s headaches had onset during active service. Accordingly, entitlement to service connection for headaches is warranted. See 38 U.S.C. § 5107 (b)(2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel