Citation Nr: 20006897 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 13-17 337 DATE: January 28, 2020 ORDER Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran had no service in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran’s headaches are not related to his active military service, to include any in-service exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1990 to September 1993. This matter comes before the Board on appeal from a December 2011 Regional Office (RO) rating decision. In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Entitlement to service connection for headaches is denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. The term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War. The “Southwest Theater of Operations” refers to 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). At his Board hearing, the Veteran testified that he served during Operation Desert Storm in Saudi Arabia and Iraq. He has suggested a belief that his headaches are related to this service. (See April 2011 personal statement.) However, his service personnel records reflect that his only foreign service was in Germany, and there is no indication that he served in the Persian Gulf. Therefore, any presumptions that are available to Persian Gulf veterans are not available to the Veteran in this case. With respect to direct service connection, the Veteran contends that he did not have headaches prior to entry into service and that his headaches began following the death of his father while he was in service. (See Board hearing transcript, pages 18-19.) He reported that he sought treatment for headaches a few times during service. (See Board hearing transcript, page 19.) He also noted that he was treated with medication for his headaches during service. (See Board hearing transcript, page 19.) His service treatment records reflect that he reported frequent or severe headaches at separation, noting that his “head hurts mostly all the time.” (See August 1993 separation medical history report.) The May 2011 VA general medical examination report notes that the Veteran reported that his headaches “have been present off and on for 10 years.” (Given that the Veteran separated from service in September 1993, this timeline would lead to an estimate that the Veteran’s headaches began approximately eight years following his separation from service.) It diagnoses tension headaches but provides no etiology opinion. Based on the above, the Board remanded this claim in January 2018 in order to obtain an etiology opinion and current evidence concerning this disability. The examination was scheduled for May 2018, but the Veteran failed to attend. The Veteran has provided no reason for his failure to report. The Board emphasizes that the medical evidence that would have been obtained from the scheduled examination could have helped to substantiate this claim, but the Veteran did not report. Post-service treatment records were reviewed; however, there is no post-service evidence that links the Veteran’s headaches to service. Nor has the Veteran submitted a medical opinion that links his headaches to his service. The only opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the medical question of whether the Veteran’s current headache disability is related to headaches that he reported in service, especially in light of his having reported at the May 2011 VA examination that his headaches had only been occurring off and on for the past ten years, is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. In short, the Board finds that the evidence of record does not persuasively establish a link between the Veteran’s service and his headache disability. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.