Citation Nr: 20028087 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-11 967 DATE: April 22, 2020 ORDER Service connection for headaches as a residual of a head injury is granted. Service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s headaches are as likely as not a residual of a head injury he sustained while in service. 2. The preponderance of the evidence is against finding that his low back disability began during his service, within a year of his discharge. or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches as a residual of a head injury are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. But the criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1971 to May 1973. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Residuals of a Head Injury – Including Especially Headaches The Veteran contends that he suffers from headaches as a result of a head injury that occurred in service. The service treatment records (STRs) reflect that, in December 1971, the Veteran was treated after falling from a jeep, striking the right occipital region of his head. He was not knocked unconscious. On admittance to the emergency room, he remembered falling from the jeep and stated that he was allergic to penicillin. On observation, he was confused, could not remember the event, and repeated himself frequently. He was alert and responsive to commands, remembered past events, but did not remember what port or hospital he was in. There was a 3-centimeter laceration on his head. There was no fracture. He was diagnosed with a concussion and the head laceration was sutured. One hospital note states that he was walking in the ward and complained of a slight occipital headache. He was admitted to the hospital for observation and then discharged two days later, noting at the time to be asymptomatic. His March 1973 separation examination was normal with regard to headaches or other residual symptoms. His military service ended in May 1973. Post-service treatment records reflect that, in February 1982, the Veteran reported experiencing right frontal headaches for the previous two years, so since 1980 or thereabouts. He was then fine until recently when he suffered a severe headache. A July 1992 record reflects the Veteran’s recollection of the jeep accident in service and his statements that he had been experiencing headaches and syncopal episodes for the previous few years, so since 1987 or thereabouts. A follow-up bone scan was normal. In July 2012, a VA examiner evaluated the Veteran and determined that it was less likely than not that his headaches were related to the jeep accident in service. The examiner explained that headaches related to direct trauma were known to exceed no more than five to seven years following the initial event, unless that was another intervening headache disorder. The Veteran’s traumatic event had occurred about 40 years previously. In April 2016, another VA opinion was obtained on the matter. The examiner also found it less likely than not the Veteran suffered from residuals related to the head injury in service, and particularly headaches. The examiner noted that, following the 1971 head injury, and while the Veteran was in the Army National Guard until 1988, there was no indication of any headache symptoms. The examiner found the Veteran first mentioned headaches in a 1991 medical record. The examiner determined that the Veteran’s current headaches would not be related to a head injury that had occurred more than 40 years previously. The examiner cited to two studies supporting the conclusion reached. The Board has considered those two unfavorable VA opinions but finds that the benefit of the doubt still weighs in favor of the Veteran in this particular instance. First, neither VA examiner discussed the significance of the 1982 record noting the Veteran’s report of headaches and prior head trauma during his service. Also, neither examiner discussed the mention of headaches in service following the jeep accident. In fact, the April 2016 VA examiner appeared to miss these records entirely. Moreover, the two studies to which the 2016 VA examiner cited have no real relevance to the issue in question, as both studies refer to the experiencing of headaches within one year following a head injury but do not address the question of headaches continuing for many years, i.e., chronically following a head injury. Likewise, the 2012 VA examiner based the unfavorable conclusion on the medical principle that post-traumatic headaches are unlikely to last for more than 7 years following the trauma. But the evidence in this case shows a continuity of symptoms of headaches. Specifically, the Veteran reported experiencing headaches while he was hospitalized in 1971, and then again in 1982, and from there throughout the past few decades. The significance of this history was not acknowledged or addressed by the VA examiner, and the Board finds this history credible. Precedent cases have held that a Veteran, himself, may be a credible historian in recounting the history of a claimed disability, and this history cannot be discounted just out of hand. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). Thus, when reviewing the two negative opinions of record, the Board finds that they are to be afforded less probative weight because they are inconsistent with medical record and do not appropriately discuss the Veteran’s statements of continuing headache symptoms since the 1971 head injury in service. In this regard, he is competent to report headaches of a similar nature beginning at the time of the 1971 head injury. He is also shown to be credible as to his symptom description, as he has consistently stated that he has suffered from headaches since that 1971 injury. For instance, in 1992, he reported having had headaches ever since that head injury in service. Significantly, he made that declaration at a time when he was not claiming entitlement to VA benefits for these headaches, so there was no pecuniary interest in fabricating information for personal gain – financial or otherwise. Moreover, courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997).   Accordingly, when considering that the Veteran is competent to report headache symptoms since service, and when considering that his statements are consistent with the treatment records dated in the 1980s and 1990s, so credible and therefore ultimately probative, the Board finds that the weight of the evidence tends to support his claim for service connection for headaches as a residual of his head injury in service. Therefore, this claim is granted. 2. Lumbar Spine (Low Back) Disability While the Veteran contends that he also suffers from a lumbar spine disability that is related to the jeep accident in service, the Board finds that the preponderance of the evidence is against this claim. First, the STRs are unremarkable for suggestion of an injury to the low back when the Veteran sustained the head injury in December 1971. The hospital records also do not mention any impact or trauma to the low back, and the remaining STRs are equally unremarkable for indication of any symptoms or diagnosis referable to the low back or lumbar spine. Also, notably, there is a lack of continuity of symptoms since service. A review of the post-service treatment records does not reveal any complaints referable to the low back until 1988, more than 15 years following the Veteran’s separation from service. Moreover, at that time he reported acute (meaning sudden onset) back pain when he awoke; he did not report any previous history of low back pain or problems, including dating back to his head injury in service. In November 1992, he contrarily reported having had low back pain since the jeep accident in 1971. These recollections are conflicting and inconsistent with the previous (intervening) records that fail to document any residual low back symptoms following the accident in service and even for many ensuing decades. Moreover, in March 2012, a VA examiner examined the Veteran and reviewed the file and found no indication that the Veteran suffered from a then current low back disability related to his service. The examiner found no indication of a residual low back disability following the jeep accident in service. The April 2016 VA examiner came to the same conclusion, finding that it was less likely than not that the Veteran’s low back disability began in service. The examiner explained that, given the more recent X-rays showing mild arthritic changes to the lumbar spine, and the Veteran’s age and profession prior to retirement, it was much more likely that his current back pain was related to his age and years of working in a factory setting. It was not within a 50 percent probability or greater that his back disability would relate to the jeep accident many decades previously, in service, especially since there was no indication of a residual injury to the low back at that time. The Board finds that the 2012 and 2016 VA opinions outweigh the Veteran’s report concerning his claim for service connection for a low back disability. While he believes his back pain must relate to that 1971 injury in service because he did not have any other motor vehicle accident that would cause his back pain, he is not competent to diagnose and opine as to the cause of his current back pain generally. He lacks the medical knowledge and expertise to conclude such. Moreover, this conclusion is inconsistent with the record, as explained above, specifically in that there is a lack of indication of injury in service or symptoms for many years following his separation from service. Also, the 2012 and 2016 VA opinions found no evidence that his current low back disability is related to his 1971 injury in service, instead, more likely the result of other factors – including his age and civilian work history. These unfavorable opinions were based on a thorough review of the relevant records, and there is no indication these opinions contradict the records to, in turn, undermine them.   Accordingly, as the weight of the competent and credible evidence is against the Veteran’s claim, service connection for a low back disability must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.