Citation Nr: 1815236 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 16-16 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a head injury with residual headaches. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran had active military service from June 1953 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board previously remanded this matter in April 2017. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2017. The Board notes that observers associated with the American Legion, D.P. and S.M., were present at the hearing. A transcript of the hearing is associated with the record. The Board notes that in a December 2017 rating decision, the RO granted service connection for radiculopathy. Thus, as this action resulted in a complete grant of the benefit sought, this issue is no longer on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The most competent and probative evidence of record does not show that the Veteran's headaches are related to or caused by an injury sustained in service. CONCLUSION OF LAW The criteria for service connection for a head injury with residual headaches have not been met. 38 U.S.C. § 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. §3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he injured his head in a parachute jump accident in service in 1953. In an October 2015 statement, the Veteran described that during this jump, another individual jumped out of the plane simultaneously and as a result, his feet became tangled with the Veteran's parachute risers. This caused the Veteran to lose control over his parachute and his ability to control his landing. The Veteran landed hard on the ground and the other individual landed on top of him. Subsequently, the Veteran lost consciousness and was in the hospital for several weeks. The Veteran contends that as a result of this fall he injured his back and head. The Veteran's wife, B.C., corroborated these statements in a subsequent October 2015 statement. Further, the Veteran reiterated these statements regarding his in-service injury at the February 2017 Board hearing. Thus, as there is evidence showing that military records were burned in a fire at the National Archives and Records Administration on July 23, 1973, and affording the Veteran the benefit of the doubt, the Board finds the Veteran to be a credible historian. Available service treatment records are silent for complaints, treatment or diagnosis of a head injury or headaches. A February 2013 VA treatment note reported that the Veteran did not have headaches at the moment but that he recently had headaches. In a September 2013 VA treatment note, the Veteran complained of headaches in the frontal and temporal region. The Veteran said he first noticed these around 3 to 4 months earlier and that they had worsened over time. The VA physician found that the headaches were most likely due to uncorrected vision. A March 2014 VA treatment note showed that the Veteran complained of headaches. The VA physician found that the headache was associated with seasonal allergy and prescribed medication. In a March 2015 VA treatment note, the Veteran complained of headaches. A March 2016 VA treatment note reported that the Veteran was seen for a follow-up emergency room visit. The Veteran complained of productive cough for 2 weeks, with dark phlegm, associated with headache. The VA physician assessed the Veteran with bronchitis, headache and prescribed him medication. In August 2017, the Veteran was afforded a VA examination for his claim. The examiner opined that his claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although the Veteran gave a credible report of sustaining a head injury during service, there was no evidence of a connected residual disability related to the head injury. The examiner stated that the Veteran reported headaches that were not noted on his separation exam with a long gap in care in the record. In addition, the symptoms of headaches were attributed in the medical record to both allergies and uncorrected vision changes. The examiner concluded that the period of latency led to a lack of connection between headaches and the head injury. Overall, there is no evidence of record to show that the Veteran's current headaches are associated with his injury in service. The Board notes that an April 2017 Board decision granted service connection for a back disability. The Veteran asserted this back injury occurred during the same incident as when he incurred his head injury; however, the Board also notes that this grant was based on the combination of lay evidence and private medical evidence suggesting that the Veteran's back disability was associated with this injury in service. In this case, though the Board finds the Veteran to be credible with regard to the occurrence of an injury, there is no medical evidence present to suggest a nexus between the Veteran's head injury disability and his in-service injury. In fact, the only medical evidence of record with an opinion regarding a nexus is negative. The Board acknowledges that the Veteran believes that his headaches are caused by service. The Veteran is competent to report symptoms of disabilities. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the issue of whether the Veteran's head injury with residual headaches is etiologically related to his service falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Based on the complexity of the medical question, the Board finds that the Veteran cannot provide an opinion as to etiology of his head injury with residual headaches. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2001); Routen v. Brown, 10 Vet. App. 183, 186 (1997). Thus, the Board affords more probative weight to the VA examiner's opinion than the Veteran's lay statements, and there are no medical opinions to the contrary. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Entitlement to service connection for a head injury with residual headaches is not warranted. The appeal is denied. § 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a head injury with residual headaches is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs