Citation Nr: 20021164 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 11-08 689 DATE: March 24, 2020 ORDER Service connection for chronic headaches from head trauma, to include as secondary to service connected temporomandibular joint dysfunction (TMJ), is granted. FINDING OF FACT Resolving reasonable doubt favor of the Veteran, the Veteran’s chronic headaches are secondary to his service connected TMJ. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic headaches, include as secondary to service connected TMJ, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1983 to March 1985. This matter comes before the Board of Veterans Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s appeal in May 2014 and April 2017 for further development. Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). Further, service connection may also 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 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Entitlement to service connection for chronic headaches from head trauma to include as secondary to service connected temporomandibular joint disorder (TMJ). The Veteran contends that he has suffered from headaches continuously since an in-service physical assault in which he was struck in the face and head. See e.g., August 2007 VA 21-4138 Statement is Support of Claim and March 2011 Correspondence. In the alternative he asserts that his migraine headaches are secondary to his service connected TMJ. See March 2011 VA Form 9. Based on the evidence of record, the Board finds it appropriate to recharacterize the Veteran’s claim for service connection for migraine headaches to include as secondary to TMJ, as a claim for chronic headaches from head trauma to include as secondary to service-connected TMJ. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s service treatment records (STRs) document that he sustained a “traumatic episode” to his front teeth in September 1983. The Veteran’s facial and head injuries from the September 1983 assault were determined to have been incurred while in the line of duty and those injuries were not a result of his misconduct. See November 1986 VA Administrative Decision. The Veteran’s STRs are silent for any reports of or finding of headaches. The Veteran was examined by VA in October 1986. Significantly, diagnoses of status post facial trauma with the loss of teeth and muscle-tension headaches were documented. The examiner noted that the Veteran appeared slightly tense and opined that the headaches were most likely “tension” in nature. The Veteran was afforded a VA Neurological Disorders examination in October 2010. He reported an assault by another soldier which caused serious injury to his face and head. The Veteran’s jaw was broken, he lost several teeth and remained in the hospital for many weeks. Notably, he stated that since the incident he has had a headache from his ear, left temple and forehead. Further as the years have gone by his headaches have gotten worse and less manageable. The Veteran reported some level of headache daily. He required Motrin so frequently for his headaches that he developed gastrointestinal upset and was prescribed Nexium. He also reported that his liver enzymes became elevated, so he was no longer able to use Tylenol. The October 2010 examiner diagnosed the Veteran’s headaches as migraines but opined that they were likely not secondary to a jaw injury. VA sought an addendum opinion in December 2015. Based upon a review of the medical evidence, the VA examiner opined that it was less likely than not that the Veteran’s headaches had their onset in service or occurred as a result of an incident or event during service. The examiner noted that the Veteran’s STRs are silent for a migraine headache condition during service. Further, he declined a separation examination. The VA examiner also noted that although the October 1986 VA examination assigned a diagnosis of tension headaches on October 1986, that diagnosis was made more than one year after discharge from active duty. Finally, the examiner stated that based upon a review of medical literature there was no evidence to suggest that the assault resulted in migraine pathology which is caused by neuronal dysfunction. VA sought an addendum opinion in November 2019 regarding the Veteran’s claim of headaches secondary to service-connected TMJ. The examiner noted that the Veteran’s headache disability was diagnosed as tension headaches in the 1986 VA examination and migraine headaches in the 2010 VA examination. The Veteran brought a treatment record from and ear, nose, and throat (ENT) doctor dated 1998, which the examiner reviewed. The record noted gross crepitus of the left TMJ region, teeth clenching, bruxism, and a history of left ear and facial pain. The ENT exam which confirmed diagnoses of TMJ, and otalgia was otherwise normal. The examiner also referenced a record which indicated that the Veteran had left ear pain with headache due to a viral ear infection that resolved with treatment. The November 2019 examiner opined that as a result of his TMJ the Veteran has bruxism and teeth clenching which can lead to a tension-like headaches due to the added pressure and grinding of the jaw region. The examiner also opined that migraine headache is not related to TMJ and is not aggravated by TMJ. The rationale for the opinion was that the classic migraine with aura is caused primarily by neuronal dysfunction which leads to changes intracranially and extracranially and can come on at any time with or without TMJ. In a March 2011 statement, the Veteran reported that his migraine and tension headaches are a result of his service connected TMJ. The headaches are disabling, cause him to miss work and have impacted his quality of life. He also indicated that he has seen numerous medical professionals for the 25 years since his discharge and complained about his headaches. Based on the evidence presented, a current chronic headache disability has been established. In that regard, the Veteran is competent to report that he has readily identifiable symptoms such as chronic headache pain. Further, the evidence clearly supports a finding that the Veteran sustained head and facial injuries as the result of an in-service assault. The question before the Board is whether a link exists between the Veteran’s current headache disability and the injuries he sustained during active duty. After careful consideration, the Board finds that the evidence is at least in equipoise that the Veteran’s headache disability is related to active duty. In that regard as noted above, the 1986 VA examiner did not offer a nexus opinion and the October 2010 VA examiner did not offer a rationale for the negative nexus opinion provided. The Board finds these opinions inadequate for adjudication purposes. The December 2015 examiner opined that the Veteran’s current headaches were not related to service, essentially because service treatment records did not include any mention or complaint of headache. The December 2015 examiner further dismissed the Veteran’s lay statements of headaches since service because a headache diagnosis was only rendered in October 1986 (19 months post-service) and as such was outside the presumptive period of one year after service. However, the Court has held that a medical opinion based solely on the absence of documentation in the record is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Here, the Veteran credibly reports that his headaches have been recurrent since service. See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra. The Veteran is competent to report that he had headaches since service, even in the absence of documented treatment. Therefore, since the VA opinion appears to disregard the Veteran’s competent lay statements, which the Board finds credible, the December 2015 opinion is also inadequate for purposes of adjudication. (Continued on the next page)   The Board acknowledges that the November 2019 examiner offered in part a negative nexus opinion that the pathophysiology of migraine headaches is not related to TMJ and the Veteran’s diagnosis of migraine headaches came many years after his military injuries. However, the Board accords probative weight to those findings of the November 2019 examiner that concluded that as a result of his TMJ the Veteran has symptoms of teeth clenching and bruxism which can lead to tension-like headaches due to the added pressure and grinding of the jaw region. The findings are consistent with the Veteran’s statements and the competent and credible medical evidence of record. Considering the totality of the evidence, to include the Veteran’s current diagnosis of headaches, his competent and credible assertions of having headaches since service, the documented in-service assault and resulting head and facial injuries, as well as the December 2015 VA examiner’s negative opinion, and the November 2019 VA examiner’s partially favorable opinion, the Board finds that the evidence is at least in equipoise on the question of a nexus. Resolving reasonable doubt in the Veteran’s favor, the claim of service connection for chronic headaches is therefore granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.