Citation Nr: 20011910 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 14-32 213 DATE: February 13, 2020 ORDER The claim for entitlement to service connection for headaches is reopened. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for headaches was originally denied in a rating decision of November 1978. 2. The denial of service connection for the Veteran’s headaches was confirmed and continued in a rating decision of May 1994, which became final. 3. The denial of service connection for the Veteran’s headaches was again confirmed and continued in a rating decision of May 2009. 4. The evidence received since the May 1994 rating decision is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. 5. It is more likely than not that the Veteran’s headaches are not due to or aggravated by his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the issue of service connection for the Veteran’s headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to November 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of May 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Before addressing the Veteran’s claim on the merits, the Board briefly clarifies its procedural history and notes prior appellate development. The Veteran’s claim was originally denied in a rating decision of November 1978. After filing to reopen his claim, which was denied again in a rating decision of May 1994, the Veteran began the process of appealing to the Board. However, the record reflects that the Veteran withdrew this appeal in October 1996. See October 1993 VA 21-4138 at 1. The May 1994 rating decision therefore became final. See 38 C.F.R. § 20.1103. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in August 2009. The RO issued a statement of the case (SOC) in August 2014 and the Veteran’s timely appeal to the Board followed in September 2014. Because the Veteran did not request a hearing in his September 2014 appeal, no hearing before the undersigned VLJ was scheduled. The Board previously remanded this case in April 2018 for further development. The Board now finds the RO has substantially complied with its remand directives and will therefore adjudicate the Veteran’s claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Whether new and material evidence has been received to reopen the issue of service connection for the Veteran’s headaches. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [material] evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). New and material evidence “can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.” Id. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The Veteran provided testimony at a hearing conducted by a decision review officer (DRO) at the RO in August 2013, submitted updated medical records, and underwent additional VA examinations on this issue in May 2014 and June 2019. The Board therefore finds that additional evidence was submitted in support of each of the three Shedden factors and that the Veteran has presented new and material evidence sufficient to reopen his claim for service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for headaches. As previously noted, service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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). Furthermore, the Board notes that certain conditions, including migraine headaches, may be service-connected on a presumptive basis even in the absence of a direct nexus. See 38 C.F.R. §§ 3.307(a), 3.309(a); see also VA Adjudications Procedures Manual, Rewrite M21-1 at IV.ii.2.B.2.b (including “migraine headaches” as among “[other] organic diseases of the nervous system” for purposes of § 3.309(a)) and Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (providing that while M21-1 is not binding upon the Board, it may be “used to convey guidance to VA adjudicators”). In such cases, a chronic disease “must have become manifest to a degree of 10 percent or more within 1 year… from the date of separation from service.” 38 C.F.R. § 3.307(a)(3). The factual basis supporting a claim for presumptive service connection “may be established by medical evidence, competent lay evidence or both.” 38 C.F.R. § 3.307(b). The Veteran has undergone VA examinations on this issue in September 1978, January 1984, May 2014, and June 2019. Each of the four VA examiners diagnosed the Veteran with a headache condition. As an initial matter, the Board therefore finds that the first Shedden factor has been satisfied. Furthermore, the Veteran’s service treatment records (STR) reflect that he sustained a head injury in February 1973. See September 1978 STR at 51. The Board therefore finds that the second Shedden factor has been satisfied as well. The Veteran’s case founders on the third Shedden factor. The Board notes that the Veteran’s reporting of the onset, duration, and severity of his symptoms is both internally inconsistent and inconsistent with the balance of the medical evidence of record. In more recent reports, the Veteran has asserted that his in-service head injury rendered him unconscious at the time, that his headache symptoms began shortly thereafter, and that they have been continuous and severe since then. See May 2013 Correspondence at 1; see also August 2013 DRO Hearing at 3-7; see also November 2019 Correspondence at 2; see also June 2019 VA Examination Report at 8-9. However, the Veteran’s STR do not reflect that the Veteran lost consciousness as a result of his injury. See September 1978 STR at 51 and 53. Furthermore, the Veteran’s own report during an earlier examination specifically denied any loss of consciousness. See October 1978 VA Examination Report at 4 (denying loss of consciousness and describing events of injury); cf. January 1984 VA Examination Report at 6 (asserting loss of consciousness and denying any knowledge of events of injury). In the Veteran’s own report of his medical history at his separation examination, he indicated that he had experienced “head injury” and “frequent or severe headache.” See September 1978 STR at 15. However, the examining physician noted that the Veteran “presently has many family related problems that are on [his] mind [and] keep sleep [down] [and] cause [headaches].” Id. at 16. The remainder of the Veteran’s STR do not reflect any complaints of, or treatment for, headache symptoms. See id.; see also June 2019 VA Examination Report at 14-15 (cataloging additional in-service treatment episodes for other conditions). The Veteran asserts in correspondence of November 2019 that he did not report headache symptoms during his in-service treatment because “no one ask[ed] if I was having headaches.” See November 2019 Correspondence at 2-3. The Board does not find this explanation persuasive because the Veteran’s STR plainly demonstrate that he was willing to report symptoms of other conditions as they occurred. See, e.g., September 1978 STR at 48 (reporting acne), at 49 (reporting sore throat), at 53 (reporting rash), and at 57 (reporting “knot on left wrist”). In other words, the record does not support the conclusion that the Veteran needed to be asked directly about a condition before reporting it for treatment. Neither the Veteran’s STR, his subsequent treatment records, nor his own lay statements consistently support his assertions of severe headache symptoms beginning shortly after his injury and persisting continuously thereafter. See September 1978 VA Examination Report at 4 (noting headaches since injury which “did improve to some extent but recently… worsened”); see also July 1981 Medical Treatment Records (noting headaches “since head injury in 1973”); see also March 1994 Medical Treatment Records at 20 (asserting headaches “ever since” injury); but cf. April 1982 Medical Treatment Records (noting headaches “for the last five days”); see also August 2001 Medical Treatment Records at 5 (noting “bad headache [for] 1 [week]”); see also March 2004 Medical Treatment Records at 7 (denying headaches); see also September 2004 Medical Treatment Records at 2 and 13 (denying headaches in March and September 2004); see also June 2019 VA Examination Report at 3-8 (cataloging additional records variously reporting no headaches, minor headaches, and severe headaches between November 2003 and December 2018). The October 1978 and January 1984 VA examiners noted the Veteran’s reporting of his history and symptoms, but did not offer independent opinions of their own regarding the etiology of his headache condition. See id. at 4 and 6, respectively. The Board therefore assigns their examination reports no probative weight on the issue of causation. The May 2014 and June 2019 VA examiners each opined that the Veteran’s headaches are less likely than not due to or aggravated by his active duty service, including his February 1973 head injury. In support of their conclusions, the May 2014 and June 2019 VA examiners reasoned that a head injury which did not result in an altered state of consciousness or result in headaches “within a short time of the injury, three months or less” would be unlikely to produce the Veteran’s current headache condition. See id. at 4 and 14, respectively. The Board notes that the June 2019 VA examiner had specialized qualifications in the study and diagnosis of chronic headache conditions. See id. at 15. In conjunction with the June 2019 VA examiner’s extensive review of the evidence of record, the Board therefore assigns his opinion significant probative weight overall. Because the evidence of record relies so heavily on the Veteran’s lay assertions to note the presence of headache symptoms, the Board is particularly mindful that it may not “determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.” Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Nor may the Board consider the absence of evidence as substantive negative evidence when adjudicating a claim. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). However, the Board may consider the absence of a prolonged period without medical complaint along with all the other evidence of record. Maxson v. Gober, 230 F.3d 1330 (2000); see also Buczynski, 24 Vet. App. at 224 (contrasting with Federal Rule of Evidence 803(7) for the proposition that the absence of a record may be substantive negative evidence if such a record would ordinarily be recorded). Given the internal contradictions in the Veteran’s statements regarding the occurrence of his injury, the duration and severity of his headache symptoms, and his demonstrated willingness to report other contemporaneous conditions while in service, the Board finds that the Veteran’s assertions regarding the onset of his symptoms have diminished credibility. The Board therefore assigns greater probative weight to the remaining medical evidence of record, including the absence of complaints of headache symptoms during the remainder of the Veteran’s active duty service, the separation examiner’s opinion that any transient headaches were due to family and psychological stress, and the May 2014 and June 2019 VA examiners’ opinions as to causation. The Board notes the Veteran’s assertion that a treating VA physician, Dr. P.C., opined that the Veteran’s headaches were at least as likely as not due to his in-service head injury. See August 2013 DRO Hearing at 6; see also December 2018 VA 21-4138. After reviewing the evidence of record, the Board has found no such opinion as to causation from Dr. P.C., who instead notes only the Veteran’s treatment or self-reporting of symptoms. See, e.g., June 2008 VA Medical Records; see also June 2019 VA Examination Report at 7-8. The Board finds that it is more likely than not that had Dr. P.C. expressed such an opinion as to causation, he would have notated that opinion in writing. Buczynski, 24 Vet. App. at 224. To summarize, the Board concludes that it is at least as likely as not that the Veteran has a diagnosed headache condition, that he experienced a head injury in service, and that he has experienced headaches of varying degrees of severity for varying durations from at least October 1978 to the present. However, the Board is not prepared to find, based on the competent and credible evidence of record, that it is at least as likely as not that the Veteran’s headaches are due to or aggravated by his active duty service, nor that they manifested to a compensable degree as a chronic condition within one year of such service. “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, as distinguished from merely isolated findings or a diagnosis including the word ‘Chronic.’” 38 C.F.R. § 3.303(b). The assignment of service connection on a direct or presumptive basis is therefore not warranted. 38 C.F.R. §§ 3.303, 3.307. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.