Citation Nr: 1817082 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-30 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Attorney, Robert V. Chisholm WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served in active duty in the U.S. Air Force from July 1984 to June 1994. The Veteran also had extensive service in the U.S. Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction now resides with the RO in Atlanta, Georgia. The Veteran testified before the undersigned Veterans Law Judge at a January 2015 Travel Board hearing. A copy of the transcript is associated with the claims file. In April 2015, the Board remanded the Veteran's claim for additional development, which was completed. A supplemental statement of the case was issued in May 2016. The case was returned to the Board for appellate consideration. In December 2016, the Board denied the Veteran's claim for entitlement to service connection for headaches. The Veteran appealed the December 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2017, the Court granted a Joint Motion for Remand (JMR) to vacate and remand the December 2016 denial of entitlement to service connection for headaches. The appeal was returned to the Board for action consistent with the August 2017 JMR. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. Clear and unmistakable evidence reflects that the Veteran's headaches existed prior to service. 2. The preexisting headaches did not increase in severity during service. CONCLUSION OF LAW The Veteran's headaches were not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board also observes that the undersigned VLJ, who conducted the Veteran's January 2015 hearing, explained the concept of service connection, as well as explained the evaluation process. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. The actions of the Judge supplement VCAA and comply with 38 C.F.R. § 3.103. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). 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 service 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). 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. The Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under C.F.R. § 3.304(b), the Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Analysis The Veteran's enlistment examination in March 1984 revealed a history of a mild concussion in 1980, for which he was not hospitalized. Thus, a history of head injury was noted at entry into service, indicating the presence of a preexisting condition. Remaining service treatment records show occasional complaints of headaches, some of which were associated with upper respiratory infections. At the April 1994 separation examination, the Veteran reported experiencing frequent headaches since 1993, treated with Tylenol as needed. The examining physician noted that there were no complications or sequelae. Post-service outpatient treatment records reflect that the Veteran sought treatment for headaches. In September 2008, a diagnosis of migraines was rendered in a CM Neurology Consult. The Veteran was first afforded a VA examination in June 2010. According to the report, the Veteran reported a history of headaches since 1993, which were progressively worsening. The Veteran reported that he had a head injury in the 1980s, when he hit his head on the steering wheel during a motor vehicle accident. The Veteran was also seen for a VA examination in February 2014 for his headaches. In the evidence of record, there are two versions of the Disability Benefits Questionnaire (DBQ) related to this February 2014 examination. In the first DBQ related to the Veteran's February 2014 VA examination for headaches, the DBQ indicated the Veteran reported that his headaches began during his teenage years, after sustaining a closed head injury and concussion in 1980. He also reported that, by age 26, his headaches increased in intensity and frequency, and that his headaches were triggered by emotional stress. He stated that his headaches were relieved by non-prescription medication, such as Motrin. The VA examiner concluded that the Veteran's chronic headaches were less likely than not due to his military service as his closed head injury and subsequent headaches predate his military service by 4-5 years. However, the examiner concluded that it was at least as likely as not that emotional stress incurred (either in military service or even in civilian life) can aggravate these pre-existing headaches. In the second DBQ related to the Veteran's February 2014 A examination for headaches, there was no indication of the examiner's statements that it was at least as likely as not that emotional stress incurred (either in military service or even in civilian life) can aggravate these pre-existing headaches. The Veteran was afforded another VA examination in February 2016. According to the examination report, the Veteran was diagnosed with migraines in 2008, and tension headaches in 2014. The Veteran reported that he was involved in a motor vehicle accident during service, wherein he hit his head on the steering wheel. The Veteran also reported that he hit his head on an I-beam while stationed in Guam and that, in 1984, an electrical panel blew up and knocked him across the hall such that he passed out; the VA examiner noted that there was no record of either incident in the Veteran's service treatment records, but that the motor vehicle accident was noted in the Veteran's service treatment records. The Veteran stated that his headaches began to be "bad" in 2005, such that he sought treatment; the headaches occurred 2-3 times per month, lasted for one day, and were relieved with over-the-counter ibuprofen or Excedrin. The Veteran stated that his headaches began on active duty, and that he would work through them, and did not seek treatment; he stated the headaches were stress-related. Following a physical examination and review of the Veteran's claims file, the VA examiner concluded that the Veteran's headaches were less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner found that the Veteran clearly and unmistakably had headaches prior to his service, possibly related to a prior trauma (i.e., the 1980 fall off of a bike, with closed head injury and concussion); the VA examiner stated that, regardless of the role of the bike accident, the Veteran's headaches preceded his active service. The VA examiner further concluded that the Veteran's headaches, which clearly and unmistakably existed prior to service, were not aggravated beyond the natural progress by any in-service injury, event, or illness. The VA examiner explained that treatment records from the in-service 1985 motor vehicle accident did not make any mention of a head trauma beyond a laceration of the lower lip; there was no action indicative of a concern of a significant head trauma. The VA examiner stated that he found the written service treatment records to be more reliable than the Veteran's current description of events. The VA examiner noted the Veteran's current report of history, that his headaches were mild prior to entry into active service, but were "much worse" during service, and often aggravated by stress, but that he never experienced nausea, vomiting, photophobia, or classic prodrome is inconsistent with service treatment records devoid of any evidence that he presented for complaints of headaches during service. Furthermore, the Veteran was not diagnosed with migraine headaches until 2008; at that time, he stated his headaches had onset 10 years earlier, which is 4 years after his active service. The VA examiner noted that the Veteran's Reserve service treatment records do not show that the Veteran presented for evaluation or treatment of headaches in the years immediately following his active service. The VA examiner stated that the lack of any evidence of significant or substantial head injury during service, and the absence of any complaints of headaches during active service, was compelling. The VA examiner also noted that the Veteran only reported the pre-service bicycle incident as to a question regarding a loss of consciousness in a 1998 Reserve treatment note. Likewise, the VA examiner noted that headaches are not listed in treatment records from 2007; the VA examiner reasoned that, if military service had caused a permanent exacerbation of his headaches, they should have been present during this time, or in treatment records dated 2009 to 2012. While a specific migraine-type medication had been prescribed and appears on his medication list in the latter period, there is no active discussion in his primary care visits or even in a referral to pain management that headaches are a central complaint. The VA examiner concluded that the Veteran's headaches pre-existed service and were not exacerbated beyond their normal progression. The Board points out that the Veteran's headaches were not specifically noted at his examination upon entrance to service. However, the Veteran's closed head injury and concussion were noted. Moreover, the Veteran concedes that he had headaches which existed prior to service. In light of this evidence and the determination of the February 2016 VA examiner, the Board concludes that there is clear and unmistakable evidence that headaches preexisted service. The Board finds that, because there is medical evidence of preexisting headaches at entry, the presumption of soundness on service entrance does not arise. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (2017). Thus, the remaining issue is whether VA established by clear and unmistakable evidence that the Veteran's headaches did not increase in severity during service or that any increase was due to the natural progress of the disease. In this case, there is clear and unmistakable evidence that the Veteran's headaches were not aggravated by service. The Board finds that there is no competent evidence that the Veteran's headaches worsened beyond the natural progression during his period of active service. In this regard, the Board points out that, in seeking treatment for headaches during service, he did not allege a history of injury or an increase in severity during service; he made no complaint of headaches related to the 1985 motor vehicle accident when treated in service. The Board acknowledges that, at separation, he reported complaints of headaches since 1993, but a review of his STRs shows that his complaints of headaches were secondary to treatment for upper respiratory infections. Moreover, the Veteran's Reserve service treatment records do not show that the Veteran presented for evaluation or treatment of headaches in the years immediately following his active service. Moreover, the February 2014 VA examination report and February 2016 VA examination indicate that there was no evidence of aggravation by service. Although one version of the February 2014 VA examination noted that it was at least as likely as not that emotional stress incurred can aggravate the Veteran's pre-existing headaches, the examiner did not indicate whether the emotional stress was from the Veteran's military service or in his civilian life. Additionally, the examiner's statement is equivocal at best, it says that emotional stress "can" aggravate the pre-existing headaches, this language renders the opinion less probative as well. In addition, the February 2016 VA examiner pointed out that it was unlikely that the Veteran's headaches permanently worsened beyond that of natural progression during service in the absence of an injury or chronicity of complaints and provided a thorough rationale that addressed the evidence of record and the Veteran's assertions. This examination report is highly probative; in fact, the Board finds that it is the most probative evidence on this question. Here, there is clear and unmistakable evidence that his headaches were not aggravated during service. The Board acknowledges that the Veteran was asymptomatic at entrance, and reported a history of headaches since 1993 at his 1994 separation examination, but points out that the Veteran's closed head injury and concussion were in fact noted on the entrance examination report and that there were no related findings regarding headaches on his physical examination report at separation. There is no indication that his headaches permanently or chronically increased in severity during service other than the Veteran's unsubstantiated lay statements. The Board reiterates that the most probative evidence shows that there is no indication that other than a lip laceration, there was no evidence of head trauma related to the 1985 motor vehicle accident. As the 2016 examiner noted, the Veteran did not report any head trauma or headaches at this time, and the treatment records do not indicate any treatment for head trauma at this time. The Veteran's only other complaint related to headaches was at separation; although he reported frequent headaches, he did not complain of an increasing severity of his headaches related to his service. To this point, the Board reiterates that the Veteran's current description of worsening headaches during service is inconsistent with service treatment records devoid of any evidence that he presented for chronic complaints of headaches during service, prior to the complaint at separation. As noted by the February 2016 VA examiner, the Veteran was not diagnosed with probable migraine headaches until 2008, at which time he reported that his headaches had onset 10 years earlier, in 1998; similarly, the Veteran's Reserve service treatment records do not reflect that the Veteran complained of or was treated for headaches in the years immediately following his active service. The Veteran is competent to report that he experienced headaches during and since his service. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether an appellant's particular disability is the type of disability for which lay evidence is competent). However, to the extent that there is argument regarding an increase in severity beyond the natural progression of the disability or aggravation of headaches related to an in-service event, injury, or illness, the medical evidence of the record, including the February 2016 VA examination report, is far more probative and credible than rather generic statements on the part of the Veteran as to onset, particularly since those statements are contradictory. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304(2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The February 2016 VA opinion is specific and well-reasoned; the VA examiner found that the Veteran's headaches have no etiological relationship to his service, and that his headaches were not aggravated beyond the normal progression by the Veteran's service. The VA examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). In this regard, the Board notes that the Veteran, in seeking treatment for headaches following service, did not associate his headaches with his service. The Board again reiterates that the Veteran denied a head injury in service to his treating providers during Reserve service; he also did not report complaints of headaches at all in 2007, and, in 2008, he reported that his headaches had their onset after his active service. To the extent that there was aggravation, the Veteran's statements of onset are inconsistent, and not credible, further, the Board finds his 2008 statements made in conjunction with treatment are more probative. See Pond v. West, 12 Vet. App. 341 (1999). The VA examiner stated that the lack of any evidence of substantial headaches during service, and the absence of any complaints or presentation for headaches or a significant head injury during active service, was compelling. Likewise, the February 2016 VA examiner found that the lack of chronic complaints related to his headaches in service clearly indicated a lack of permanent worsening of his headaches. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). Thus, there is clear and unmistakable evidence that the Veteran's headaches preexisted service and were not aggravated by service. The post-service evidence, coupled with the service treatment records, constitutes clear and unmistakable evidence that there was no chronic aggravation. In short, the totality of the evidence indicates that the Veteran's headaches clearly and unmistakably did not worsen beyond a normal progression during service. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection of headaches. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for headaches is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs