Citation Nr: 20028461 Decision Date: 04/23/20 Archive Date: 04/23/20 DOCKET NO. 14-13 407 DATE: April 23, 2020 ORDER Entitlement to service connection for a headache condition is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s headaches began during active service, or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1975 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2016 and March 2018. The Board remanded the issue for further development in March 2018. Specifically, the Board found that the Veteran’s previous VA examinations in February 2014 and September 2016 were not adequate in that the examiners failed to provide opinions regarding the etiology of the Veteran’s headache condition. The Veteran has undergone an additional VA examination and as such his claim will be adjudicated below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 1990). 1. Entitlement to service connection for a headache condition The Veteran contends that he suffers from headaches related to his active duty service. The Veteran’s service treatment records note that the Veteran reported having trouble with headaches related to a cold in May 1978. At the Veteran’s August 1978 separation examination, the Veteran reported being in good health and no reports of headaches were made. In a March 2013 VA medical report, the Veteran complained of bad headaches for about 5 months, as well as right knee pain. He reported that he had a motorcycle accident 10 years ago and that his headaches and knee pain started after that. In July 2013, the Veteran was seen by a primary care physician due to complaints of headache, left ear pain, and right knee pain. The Veteran reported having left ear pain since 1975 and noted a headache that was constant but waxed and waned. The Veteran underwent a VA examination in October 2019. Therein, the examiner diagnosed the Veteran with a headache condition described as migraines. The Veteran reported to the examiner that he had experienced headaches since 1975. Ultimately, the examiner concluded that the Veteran’s headache condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that after all of the Veteran’s available records were reviewed, the Veteran’s service treatment records contained only a single complaint of headaches in May 1978 while being treated for a head cold. There were no other complaints of headaches nor was there a notation of headaches in the Veteran’s separation examination. The examiner further stated that the Veteran’s post-service medical records showed multiple medical evaluations and treatments for headaches when the Veteran was seen for other disabilities that included multiple etiologies discussed and considered. The examiner concluded that unless additional medical records could be located and reviewed, there was no current evidence of headaches in service, and no evidence to connect the Veteran’s current headache condition to his military service. The Veteran’s headaches were noted as more likely related to his post service MVA or TMJ. The Board places high probative weight on the October 2019 VA examination, as the examiner reviewed the Veteran’s medical records, lay statements, and provided an adequate rationale for the opinion that the Veteran’s headache condition did not result from active military service. The Board notes that there is no medical evidence of record to the contrary. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for headaches and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b); however, the probative evidence does not indicate that a listed condition, such as an organic disease of the nervous system, manifested within a year of separation of service or that it occurred continuously since discharge from service. Indeed, the first post-service medical evidence of headaches is in a March 2013 VA medical report where the Veteran reported that his headaches started after a motorcycle accident 10 years previously, which would be approximately 25 years after his discharge from service. Therefore, as the medical and lay evidence show that the onset of the Veteran’s headaches occurred many years after service, presumptive service connection and service connection based on continuity of symptomatology are not warranted. The Board acknowledges the lay statements made by the Veteran that his headaches are related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303; Washington v. Nicholson, 19 Vet. App. 362. Headaches are also a diagnosis capable of lay observation, and the Veteran is competent to report when he first experienced headaches and that the symptoms have continued since service. Charles v. Principi, 16 Vet. App. 370 (2002). However, to the extent that the Veteran asserts that he has experienced headaches continuously since discharge from service, the Board does not find these statements to be credible, as they are inconsistent with the medical and lay evidence of record. The probative evidence of record weighs against the Veteran’s assertion that his current headache condition is related to service. The VA examiner found no medical evidence to support that the Veteran’s headaches were incurred in service, or have been a chronic condition since service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.