Citation Nr: 20070118 Decision Date: 10/29/20 Archive Date: 10/29/20 DOCKET NO. 18-14 059 DATE: October 29, 2020 ORDER Service connection for headaches is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran’s current headaches are related to his in-service injury. CONCLUSION OF LAW The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from November 1965 to March 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board is aware that the Veteran has requested a hearing. In light of delays in hearings scheduling caused by COVID-19, the Board ordered a review of some of the oldest docket legacy cases in our hearing queue that may be fully granted with evidence of record. Based on the grant of the appeal, the Veteran’s request for a hearing is no longer necessary and will be cancelled. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for headaches. The Board briefly notes that the claim was initially denied in February 2016. However, new and material VA records have been added to the record that were not initially considered. Specifically, an examination was performed in March 2016 for his traumatic brain injury claim. The Board acknowledges this examination was not specifically for his headaches, however, it was reported that the Veteran had headaches for months after his in-service injury, and that his headaches remained constant since service. As such, the claim remained pending. 38 C.F.R. § 3.156(b). The Veteran asserts service connection for headaches. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of headaches, and that the evidence is at least in equipoise that they are related to his active duty. 38 U.S.C. §§ 1110, 5107(b). The Veteran has a diagnosis of chronic headaches. As such, the first element of service connection is met. He contends that his headaches began after he fell and injured his head during service. His service treatment records show that the Veteran fainted during service and experienced headaches. Additionally, his spouse has submitted lay testimony reporting the Veteran experiencing severe headaches after service. The Board finds these statements to be competent to describe his history of headaches. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also finds these statements to be credible as they are consistent with his military service and other evidence of record, to include other lay statements. A January 2016 examiner, using the Acceptable Clinical Evidence (ACE) process and a phone interview with the Veteran, found that the Veteran’s disability was less likely than not related to service. In support, the examiner stated that the Veteran’s headaches in service appeared temporary in nature and resolved prior to separation. The examiner did not address the Veteran’s contentions that his headaches had continued since his fall in service. A May 2017 examiner, also using ACE process, provided a negative nexus opinion as well. The examiner noted that there was no report of a concussion during service and that he could not be diagnosed with post-concussion headache syndrome. The Board finds these two opinions to have little probative value. The examiners do not appear to fully account for the credible lay statements that the Veteran has experienced headaches since his fall in service. Moreover, they rely on the absence of headaches at the separation examination and lack of a concussion diagnosis in his service treatment records. The Veteran has provided a positive private nexus opinion, dated in January 2018. The physician found that the Veteran has had a lifelong problem with his headache syndrome, and that it was likely due to his closed head injury in service. Moreover, his headache picture is consistent with posttraumatic headache syndrome. The physician later reported in February 2018 that he reviewed the Veteran’s military medical records, and that his headaches seemed to be a direct sequalae of his injury during service. The Board finds these opinions to have probative value. The physician examined the Veteran, reviewed his medical records, and accurately accounted for his lay statements describing his history of headaches. The Board finds that the opinions can be somewhat conclusory at times as the physician reports that his headaches are the result of his in-service injury without additional rationale. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his headaches are due to his in-service fall. The Board acknowledges the negative opinions. However, the Board has found that these opinions have little probative value as they rely on the absence of additional documentation in his service treatment records (no concussion diagnosis and no remarks on separation examination) and do not adequately address the Veteran’s credible lay statements. Additionally, the Veteran has provided positive nexus statements that the Board has found to have probative value. As the positive records have some probative value, and the negative nexus opinions have little to no probative value, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”).   As such, the Board finds that the evidence is at least in equipoise that the Veteran’s headaches are related to his active duty. Therefore, service connection for headaches is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.