Citation Nr: 20021673 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-43 975 DATE: March 26, 2020 ORDER Entitlement to service connection for migraine headaches is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s migraine headaches were incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to September 1985. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran appeared and provided testimony before a VA Decision Review Officer (DRO). A transcript of this proceeding has been associated with the claims file. The Board remanded the claim in June 2018 to the RO for additional development. The Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks service connection for migraine headaches, which he alleges are the result of a head injury sustained in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, service treatment records indicate the Veteran received treatment for headaches in January 1978 and September 1979. In May 1982, he was treated for a head injury after diving into a lake and hitting his head on a rock, some swelling of the eyes and forehead were noted. An August 1983 reenlistment examination did note any complaints with nor note any findings related to his health. In October 1983 he received treatment for headaches due to burns to his face and eyes. In February 1984 he was treated for a headache due to conjunctivitis. In September 1985 he elected to not receive a separation from service medical examination. A physical examination performed by a VA medical examiner in January 1987 did not note any complaints with nor note any findings related to his health and it was recommended “the prospective missionary is physically and emotionally fit for service in any area of the world.” A May 2013 VA examination report included a review of the claims file and medical records, a recitation of the Veteran’s complaints and medical history, and physical examination results. The examiner noted the Veteran had a diagnosed migraine condition in 1985. The Veteran informed the examiner he experiences headaches once or twice a week and that they have decreased in frequency after participation in an anger management course. The examiner opined that the Veteran’s headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale for this opinion was as follows: [service medical record] for [headache] dated 17 Sep 1979 is secondary to viral syndrome. [headache] noted on 10 Feb 84 is secondary to viral/allergic conjunctivitis. These conditions are not related to tension or migraine [headache]. No other mention of [headache] in [service medical record]. Vet waived right to have a separation exam on 9 Sept 85 and review of records by MD showed no chronic illness or diasability. An August 15, 2013 VA examination report included a review of the claims file and medical records, a recitation of the Veteran’s complaints and medical history, and physical examination results. The examiner opined the Veteran did not have a traumatic brain injury (TBI) and that his headaches were not a residual of the head injury sustained in service. Later in August 2013 and in March and August 2014, VA treatment records indicate he denied having headaches. In July 2015, he claimed he suffered from “on/off headaches.” In August and September 2015 and January 2016, he received treatment for headaches. In March 2016, he reported he suffers from “on/off headaches.” During the Veteran’s September 2016 DRO hearing, he alleged that he has suffered from migraines since he hit his head in service and called them “debilitating.” He also alleged his headaches have continued to worsen over time. In June 2018, the Board remanded the case back to the RO, finding the May 2013 VA examination inadequate since it did not address the Veteran’s in-service head trauma and because some VA medical records were missing. A November 2019 VA medical opinion included a review of the claims file and medical records, a recitation of the Veteran’s complaints and medical history. The examiner noted the Veteran had a diagnosed migraine condition in 2013. He also opined his headaches were less likely than not related to his in-service head trauma. Specifically, he wrote: Although [the] [V]eteran . . . [had a] head injury in service, medical records from the time show that this head injury resulted in no chronic complaints to include migraine and was fully vetted by separate C&P evaluation and found to have not resulted in a traumatic brain injury with residuals. Following service [the] [V]eteran [had] medical records for headache that the veteran attributed to head injury in service, however, the objective service medical records and the veteran's separate C&P evaluation for this head injury has shown there is no objective evidence of chronic headaches including migraine associated with this [head] injury in service. The Board has reviewed all the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the preponderance of the evidence is against finding that the Veteran’s migraine headache disability was incurred in or otherwise related to service. The Board concedes the Veteran has a current migraine headache disability and that he sustained a head injury and received treatment for headaches in service; thus, he has established the first two elements of service connection. Shedden, 381 F.3d at 1167. However, the preponderance of the evidence does not support the finding of the third element; a nexus between his current migraine headache disability and an in-service event. The Board finds the May 2013, August 2013, and November 2019 VA examiner's opinions are most probative, because they are based on accurate medical histories and provide explanations that contain clear conclusions and a supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). First, although the May 2013 VA examination did not consider the Veteran’s in-service head trauma and was deemed inadequate by the Board, the examiner still determined his migraine headache disability was not due to his in-service headaches. Second, the August 2013 VA examination for a TBI determined the Veteran’s headaches are not a residual of a TBI since his head injury “does not meet the diagnostic criteria of a TBI.” Third, the November 2019 VA examiner considered his in-service head trauma and determined his migraine headache disability was not the result of his in-service head trauma. Thus, two VA examiners determined the Veteran’s migraine headache disability is not related to his in-service head trauma and another VA examiner determined his migraine headache disability is not due to his in-service headaches. The VA examiner’s opinions are supported by the Veteran’s medical evidence of record which reflects: (a) he declined to have a post service medical examination in 1985, (b) a 1987 physical examination did not note any issues related to headaches or any other medical issues, and (c) his post-service treatment records do not reflect he sought treatment for a migraine headache until May 2013; 28 years after service. It is reasonable to assume that if his migraine headache disability was as severe as he has claimed, the evidence of record would contain medical evidence of treatment between 1985 and May 2013. Lastly, the evidence of record is devoid of any contrary competent medical opinions. Indeed, the only evidence of a connection between his in-service head injury and his current migraine headache disability is from the Veteran’s own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his migraine headache disability is related to his in-service head injury, he is not competent to make such a determination, which is medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge. These are matters which are not capable of lay observation. For these reasons, the Board finds that a preponderance of the evidence is against finding the Veteran's migraine headache disability is related to service or manifested within one year of separation. The Board concludes that service connection for his migraine headache disability is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Accordingly, the Veteran’s claim for service connection for a migraine headache disability is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.