Citation Nr: 20005633 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 10-43 891 DATE: January 23, 2020 ORDER Entitlement to service connection for headaches, to include as a qualifying chronic disability, is denied. REMANDED Entitlement to service connection for headaches on a secondary basis only is remanded. FINDING OF FACT Headaches did not manifest during active service, are not otherwise related to active service, and are not a qualifying chronic disability. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2006 to August 2008. He served in the Southwest Asia Theater of Operations from August 2007 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, the Veteran presented testimony at a travel board hearing before the undersigned Veterans Law Judge. The Board previously remanded this claim in May 2014 and October 2016 to obtain VA examination and opinions regarding whether the Veteran’s skin disorder, headaches, and respiratory disorder were related to his service. The appeal was again remanded by the Board in October 2017. That remand also included the issues of entitlement to service connection for a respiratory disorder and for pseudofolliculitis barbae (PFB). In a January 2019 rating decision, the RO granted service connection for asthma. An August 2019 rating decision granted service connection for PFB. Accordingly, these issues are no longer for Board consideration. Service Connection 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 (2012); 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). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. § 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection is granted for Persian Gulf Veterans with a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. If not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2121. 38 C.F.R. § 3.317(a)(1)(i). A Persian Gulf Veteran is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317(a)(2)(i). If probative evidence exists that the Veteran's disability pattern is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases), then service connection must be granted for a Gulf War illness. 38 C.F.R. § 3.317(a)(2)(i), (ii). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). There must be objective indications of a qualifying chronic disability, which include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(1), (3). A disability is considered chronic if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. The sixth month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of direct service connection, VA cannot impose a medical nexus requirement. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Gutierrez, 19 Vet. App. at 9-10. Undiagnosed pain may be the basis of an award of compensation under 38 U.S.C. § 1117. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Entitlement to service connection for headaches, to include as a qualifying chronic disability. The Veteran seeks entitlement to service connection for headaches. The Veteran contends his headaches are due to a head injury sustained in service. See October 2010 statement. At the 2013 Board hearing, the Veteran stated that his headaches began during service and have continued since that time. The Board finds there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An August 2018 VA examination opinion indicated a diagnosis of migraine including migraine variants. A November 2009 VA examination and August 2010 VA treatment records document a diagnosis of tension headaches, the disorder has since resolved. VA treatment records document a 2016 diagnosis of post-traumatic headache. Thus, the first element of service connect is met. Second, the Board finds that there was an in-service injury but no disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records (STRs) document that in December 2006 he was assaulted, resulting in pain and injuries to his head, neck, chest, and upper back, and experienced a contused head, neck, and back, to be treated with ice and Tylenol. At the November 2009 VA examination, in an April 2014 VA treatment record, and at the October 2013 Board hearing, the Veteran described an in-service incident which the gate of a truck fell on his head causing him to briefly pass out. The Board finds these statements competent and credible as they have been consistent throughout the claims period. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); 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). Thus, the in-service incident is conceded. At the October 2013 Board hearing the Veteran testified his headaches began during service and have continued since that time. Although the Veteran is competent to report the presence of symptoms, the Board finds this statement not credible as it is inconsistent with other evidence and lay statements of record. See Washington, 19 Vet. App. at 368; Caluza, 7 Vet. App. at 511. Notably, at the November 2009 VA examination, the Veteran stated that his headaches began after service. Likewise, in an August 2008 service discharge report of medical history, the Veteran denied headaches. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (noting that generally, an absence of evidence of a disorder is not substantive negative evidence, except where the fact would have normally been recorded). Thus, although there is an incident during service, there is no in-service onset, and no finding of a chronic disability during service. Third, the Board finds that the evidence of record does not support a finding that headaches are otherwise related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent a November 2009 VA examination. The examiner opined that the claimed condition of headaches in service could not be resolved without resorting to mere speculation as the Veteran did not have any headaches while he was in the military after he sustained the head injury. The Veteran reported he did not have headaches during service, but had them afterwards and believes that the headaches are related to the head injury sustained in service. An August 2010 private treatment record documents the Veteran was seen at an emergency room for headache symptoms. The Veteran underwent a CT scan of his head. The CT imaging was negative of evidence of hemorrhage, vascular territory ischemia, or local mass lesion, and the skull base and calvarium were intact.   An April 2014 VA treatment record documents the Veteran underwent a traumatic brain injury (TBI) second level evaluation. The Veteran reported a serious incident that happened in service when the back gate of a truck fell on top of his head and knocked him out. The Veteran described that after the incident he noticed a bump on the top of his head, but no significant headaches, nausea, or vomiting. The Veteran reported current symptoms of headache pain. The Veteran failed to report to an August 2015 VA examination; however, the examiner opined that the Veteran’s headaches were less likely than not incurred in or caused by active service. This examination was found to be inadequate for failure to comply with the May 2014 remand directives, including to consider December 2006 service treatment records indicating that the Veteran had been assaulted resulting in pain and injuries to the head, neck, chest, and upper back, and experienced a contused head, neck, and back, to be treated with ice and Tylenol, a November 2009 VA examination diagnosis of tension headaches, private emergency room treatment for headaches in August 2010, and the Veteran’s lay statements. The Veteran underwent a VA examination in January 2017. The examiner also failed to consider the requested evidence, citing only peer reviewed medical literature definition of a migraine. Additionally, the examiner failed to address whether the Veteran’s headache symptoms, if not indicative of a headache diagnosis, were indicative of an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. In August 2018 the Veteran underwent another VA examination. The examiner opined the headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, explaining that based on a review of the STRs, Veteran’s statements, and post discharge records there was no nexus for headaches. The examiner also noted that tension headaches were diagnosed in 2009 and resolved due to silence in chronicity of care between those complaints and present-day complaints, and migraines were established in April 2014, five years after discharge. The examiner also opined that it is less likely than not that the Veteran’s headache conditions are a Gulf War illness because the Veteran’s headache conditions have a clear diagnosis and etiology. A September 2019 addendum opinion was obtained. The examiner opined that the headaches are less likely than not to have had onset in or otherwise caused by the Veteran’s military service, explaining that the Veteran denied headaches at discharge. The examiner noted, per the International Headache Society, that post-traumatic headaches are defined as a headache developing within seven days of the injury or after regaining consciousness. The examiner explained that based on a review of STRs, remands, Veteran’s lay statements, post active duty records, no nexus for headaches to active duty is evident. The examiner particularly noted that the 2006 STRs indicated bruises, but not orthopedic injuries and there was no loss of consciousness and the denial of in-service headaches at discharge and at the 2009 VA examination. The examiner also opined that it is less likely than not that the Veteran’s headache condition is a Gulf War illness, noting that the headaches have a clear diagnosis and etiology. The examiner specifically quoted medical literature from the Mayo Clinic and also noted researchers are still studying the role of serotonin in migraines and there is no medical literature to date linking migraines to a specific environmental exposure in SWA. First, service connection is not warranted under the Persian Gulf provisions as the August 2018 examiner opined that the Veteran’s headache conditions have a clear diagnosis and etiology. The 2019 VA examiner made a similar finding. These examiners supported their findings with explanations and the Board accords them significant probative value. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Second, as noted above, there was no notation of a chronic disability during service or manifestations thereof. 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, service connection on this basis is not warranted. Third, the evidence does not support a finding that headaches are otherwise related to active service or caused. 38 C.F.R. § 3.303(d). The Board accords the August 2018 VA examination and subsequent September 2019 addendum significant probative weight because the opinions are based upon a review of relevant records and provided supporting explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). To the extent the Veteran asserts his claimed disorders are etiologically related to service, the Board finds that his statements are not competent lay evidence. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiologies of headaches are clearly distinguishable from testimony regarding the presence of ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the criteria for service connection for headaches, to include as a qualifying chronic disability, are not met. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   REASONS FOR REMAND 1. Entitlement to service connection for headaches, on a secondary basis only, is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In an August 2018 VA examination report, the examiner opined that the headaches were not caused or aggravated by the service-connected anxiety as there was no supporting clinical evidence. In a September 2019 VA addendum opinion, the examiner opined that there is no clinical evidence that the Veteran’s headache conditions have been aggravated by any cause including the anxiety disorder. But these explanations are conclusory and do not provide any actual rationale for the provided opinions. Accordingly, an addendum opinion is required. The matters are REMANDED for the following action: After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the headaches from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused or aggravated by the service-connected anxiety disorder. The examiner must provide a supporting explanation, to include what type of clinical evidence is lacking in this case that would indicate a relationship to the anxiety disorder. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.