Citation Nr: 20046474 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 18-45 222 DATE: July 13, 2020 ORDER Entitlement to service connection for headaches is denied. FINDING OF FACT The Veteran does not have a chronic headache disability which is etiologically linked to active duty. CONCLUSION OF LAW The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2011 to April 2015. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for headaches. The Veteran seeks service connection for headaches. The Board first received his claim in August 2017. While the Veteran’s claim is for headaches, the scope of the claim includes any disability that may reasonably be encompassed by the Veteran’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The service treatment records document intermittent complaints of headaches at times and also denials by the Veteran of having headaches. At the time of the entrance examination, clinical evaluation of the neurological system was normal. The Veteran denied having or ever having had frequent or severe headaches. In October 2012, the Veteran complained of headache after having a cold but this resolved after a couple days. Another clinical record dated in October 2012 indicates a clinician found that the Veteran's headache which was due to dehydration was resolved. In November 2012, the Veteran denied having headaches. In March 2013, the Veteran reported having a headache. In July 2013 and October 2013, the Veteran denied having headaches. Headaches were again denied in May 2014. In June 2014, the Veteran reported, in part, that he had a headache which began five days prior. The assessment was pharyngitis. The Veteran denied having a headache in July 2014, December 2014 and January 2015. The post-service clinical records reveal that in June 2015 and July 2015, the Veteran denied having a headache. A December 2015 VA clinical record notes the Veteran’s report of headaches. The Veteran reported that, on one occasion, while at Ft Irwin shooting artillery, he experienced a headache and needed to lie down. The Veteran underwent a VA examination for headaches in December 2017. The Veteran denied having, or ever having had, frequent or severe headaches. On the basis of his examination of the Veteran and a review of the Veteran’s service and medical history, the examiner determined that the Veteran was not currently, and had never been diagnosed with headaches. The Veteran also denied having current diagnosis or treatment of headaches. The Veteran, as a layperson, is competent to report his experienced headaches. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the July 2018 notice of disagreement and August 2018 form 9, the Veteran stated that he has migraine headaches at least five times a week which started in service. The Veteran alleged he sought treatment after discharge for migraines. The Veteran denies ever stating that his headaches has been resolved. The Board places reduced probative value on the Veteran's reports of experiencing chronic migraines which began during active duty. The Veteran's report of headache symptomology during active duty was not diagnosed as being a migraine. Furthermore, the service treatment records document only intermittent complaints of headaches which, at other times, the Veteran denies having. While there is evidence of some complaints of headaches during active duty, there is no evidence in the service treatment records that the Veteran experienced chronic headaches or serve headaches. The post service clinical records do not document the presence of chronic headaches nor do they document the presence of severe headaches. In fact, these records indicate the Veteran denied having headaches more than he reported them. Again, the reported headaches were not diagnosed as migraines nor were reported by the Veteran or any clinician to be chronic. The Board notes the Veteran received treatment for other medical problems during the appeal period. The Board finds that, if the Veteran's headaches were as severe as he was reporting on his statements in 2018, he would sought treatment for the disorder or, at a minimum, he would have informed a health care professional that he had had some sort of history of severe headaches. The Veteran denied informing anyone that he had never had headaches. The VA examiner wrote down that the Veteran did report such a fact pattern. It is not apparent to the Board why the examiner would have indicated that the Veteran denied having headaches when this was the very reason for the examination. The Veteran's report to the VA examiner in December 2017 that he did not have frequent or severe headaches is supported by the lack of complaints of headaches in the post-service clinical records. While the Board cannot find lay evidence to be not credible merely because it is unaccompanied by contemporaneous medical evidence, a lack of contemporaneous medical evidence can be considered and weighed against a claimant’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this case, the Board finds that the lack of contemporaneous medical evidence accompanied by the Veteran's report of medical history he provided at the time of the December 2017 VA examination demonstrates that he did not have a chronic headache condition. The preponderance of the evidence is also against finding that headaches (an organic disease of the nervous system) had their onset during service or in the one-year presumptive period following service because there are no medical records diagnosing the Veteran with headaches nor continuity of symptoms from discharge to present. As set out above, the probative evidence of record demonstrates that the Veteran did not have a chronic headache disability at any time during the appeal period. The Veteran’s assertion of headaches secondary to tinnitus is denied because the Veteran is not service connected for tinnitus. (Continued on the next page)   There is no competent and credible opinion of record that associates the Veteran’s current headache symptoms with service. As the positive and negative evidence is not in approximate balance, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.