Citation Nr: 20003950 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-01 176 DATE: January 16, 2020 ORDER Entitlement to service connection for chronic headaches is denied FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s chronic headaches began during active service, manifest to a compensable degree within one year of discharge, or are otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for chronic headaches have not been met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. § § 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1961 to July 1963. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a May 2018 decision, the Board remanded this claim for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including migraines, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303(b). Finally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for chronic headaches. The Veteran contends that he has chronic headaches related to active service. The record shows that the Veteran was diagnosed with chronic headaches during a September 2019 VA examination. In a June 1960 Report of Medical History completed near the time of enlistment, the Veteran reported a head injury two years prior with loss of consciousness and amnesia. In a July 1961 Report of Medical History completed at the time of entrance to service, the Veteran reported an incident of amnesia and unconsciousness four years prior after bumping heads with another person. In a July 1961 Report of Medical Examination, the examining physician found the Veteran’s neurologic evaluation to be normal. A review of the Veteran’s service treatment record (STR) indicates that the Veteran was admitted to the hospital in September 1961 following a slip and fall while on liberty. The Veteran was rendered unconscious and recalled nothing of his pre or post traumatic event on his initial evaluation. Chest and skull x-rays were taken and reported as negative. The day after admission to the hospital the Veteran was neurologically clear and complained only of a slight headache. The Veteran’s headache abated the next day. The Veteran’s STR shows that the Veteran was treated for a headache in March 1963. However, the Veteran’s service treatment records do not contain a diagnosis for a chronic headache condition. With the exception of the September 2019 VA examination, the Veteran’s post-service treatment records do not contain evidence of a diagnosis for a headache condition or complaints of headaches. Migraines are subject to presumptive service connection as a chronic disease. 38 U.S.C. § 1112 (a); 38 C.F.R. § § 3.307, 3.309(a). The record is clear, however, that the Veteran’s chronic headaches were initially identified many years after active duty service. As there is no showing of a chronic headache condition in service or to a compensable degree in the year after service, presumptive service connection for headaches as a chronic disease is not warranted. The Veteran was provided a VA examination for headaches (including migraine headaches) in December 2015. The examiner found that the Veteran has no current or past diagnosis for a headache condition. The examiner noted that the Veteran denies visiting his personal physician for headache treatment. The examiner opined that the Veteran’s claimed headache condition was less likely than not (less than 50 % probability) incurred in or caused by the claimed in-service injury, including the Veteran’s September 1961 loss of consciousness. During the examination, the Veteran reported that he has occasional bi-occipital headaches, described as a dull throbbing. The Veteran reported that the headaches occur about four or five times per year and he treats them with Tylenol. The Veteran stated that the headaches do not cause prostration or lead him to medical care. The Board notes that the Veteran’s claim was remanded in May 2018 for additional development due to a deficiency in the December 2015 VA examination. The Board found that the examination had failed to acknowledge the Veteran’s March 1963 treatment for a headache. Pursuant to the May 2018 Board remand, the Veteran was provided an additional VA examination for headaches in September 2019. The examiner diagnosed the Veteran with chronic headaches. The Veteran reported frequent headaches with pain in the front/back of the head and a duration of less than a day. The examiner did not find non-headache symptoms associated with the headaches or characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner found that the Veteran’s headache condition does not impact his ability to work. The examiner found that the Veteran’s claimed chronic headaches are not at least as likely as not (50 percent or greater probability) incurred in or caused by the Veteran’s headaches during service, related to an in-service injury, event, or disease, including the March 1963 treatment for headaches as there is insufficient evidence to support. The examiner noted that the Veteran’s March 1963 treatment notes and the September 1961 head injury report were the only mentions of headaches in the Veteran’s service treatment records. The examiner also noted that the Veteran denied visiting his personal physician for headache treatment and did not mention headaches or treatment for headaches during April 2014 and March 2015 VAMC visits. The September 2019 VA examiner interviewed the Veteran; thoroughly reviewed the Veterans service records and medical history; and provided conclusions based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No etiological opinions or suggestions are contained in the record that relate the Veteran’s chronic headaches to service. Here, there is no competent evidence of a nexus between the Veteran’s chronic headaches and service. The only evidence of record in support of such a nexus is the Veteran’s lay opinion that his chronic headaches are due to service. To the extent the Veteran’s statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, the Veteran’s assertions as to a relationship between his chronic headaches, diagnosed many years after service, and service are of little probative value. It is important for the Veteran to understand that the findings from the September 2019 VA examination provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s chronic headaches are not etiologically related to his service. Again, there is no competent and probative evidence to show that the Veteran had chronic headaches during or contemporaneous with service and no competent and probative evidence that his current condition is related to service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for chronic headaches and that the claim must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. §5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.