Citation Nr: 21000570 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-31 611 DATE: January 5, 2021 ORDER Entitlement to service connection for residuals of a head injury with headaches is denied. REFERRED In an August 2019 appellate brief, the Veteran’s representative stated that the June 1994 rating decision that had first denied the Veteran’s claim for service connection for a head injury had been based on clear and unmistakable error (CUE). The Board is unable to take jurisdiction of the Veteran’s CUE claim. The Board is an appellate body with no authority to take original jurisdiction over an issue not adjudicated by the regional office (RO), and cannot review in the first instance the request for revision of an RO decision based on CUE. The issue of CUE is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s residuals of a head injury with headaches arose during or as a result of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a head injury with headaches have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2019 hearing before the Board of Veterans’ Appeals (Board). The Board remanded these claims in October 2019 and October 2020 decisions. The Board finds that the RO has substantially complied with the Board’s remand directives, and the Board may now proceed with adjudication. Prior to recertification of the case to the Board, the Veteran’s former representative withdrew representation. As will be discussed herein, the Board finds that the Veteran has reasonably raised a claim that a June 1994 rating decision contained clear and unmistakable error (CUE) when denying service connection for residuals of a head injury. In an August 2019 appellate brief, the Veteran’s former representative stated that the June 1994 rating decision that had first denied the Veteran’s claim for service connection for a head injury had been based on CUE. The former representative stated that the June 1994 rating decision denying service connection for residual head injury with headaches was in error because it was erroneously based on the conclusion that the Veteran’s service treatment records (STRs) were silent for any complaints or treatment for residuals of a head injury with headaches. The Board does not have jurisdiction to adjudicate the merits of this claim herein. As such, this claim is referred to the Agency of Original Jurisdiction (AOJ) for consideration in the first instance. The Board briefly notes that it has considered whether the claim for CUE is inextricably intertwined with the issue on appeal—service connection for residuals of a head injury with headaches—and has found that the issues are not inextricably intertwined, as the determination of the present claim does not depend on the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran asserts that his current headache condition arose during or as a result of his active service, including as due to an in-service head injury. Service connection will be granted for a present disability resulting from a disease or injury incurred during military service. 38 U.S.C. § 1110. Service connection may be granted for an existing disability first diagnosed after discharge, when the evidence of record shows that an underlying disease or injury resulting in the present disability was incurred in service. 38 C.F.R. § 3.303(d). This means, in the Veteran’s circumstances, that to warrant service connection in his case the evidence of record must show either that his current headaches resulted from the in-service head injury or that his current headaches originated in service. The Veteran’s STRs reflect treatment for headaches along with aberrant behavior, lethargy, unsteadiness of gait, and dizziness in March 1969. In the March 1969 treatment note, the physician notes that the Veteran reported experiencing his reported symptoms since coming aboard his service vessel two weeks earlier. His pre-discharge July 1969 medical examination was negative for complaints of head injury or residuals, headaches, or other symptoms. The Veteran first filed a claim for service connection for a head injury in February 1994 and a second claim in April 2011. VA treatment records reflect treatment for headaches in March 2014. In April 2014, the Veteran submitted a Disability Benefits Questionnaire for headaches that was completed by a private physician. The physician noted migraines; however, no etiology opinion was provided. During the Veteran’s August 2019 Board hearing, he testified that he injured his head during active service. He was working on a floating dry dock when a wrench fell from higher up and struck his head. The wrench was estimated to weigh between 25 and 50 pounds. After he was struck, the Veteran was taken to sick bay and given stitches for his head wound. He described being stunned, disoriented, queasy, and exhausted, although his fatigue may have been from work. The Veteran testified that after this incident he began experiencing chronic headaches, with at least one headache per week. A research article submitted in August 2019 found evidence that traumatic brain injuries (TBI) led to an increased risk of developing chronic headaches. It also listed symptoms of TBI that were consistent with those experienced by the Veteran after his head injury, including nausea, headaches, fatigue, dizziness, and being in a dazed, stunned, or confused state of mind. In a December 2019 VA medical opinion, the VA examiner opined that the Veteran had never been diagnosed with a TBI during service, so any residuals were less likely than not related to active service. In a November 2020 addendum VA medical opinion, the VA examiner found the claimed condition was less likely than not to have arisen during or as a result of the Veteran’s active service. The examiner stated that there was no documentation of a head injury, loss of consciousness, post-traumatic amnesia, neurologic deficit, or intracranial lesion to support a diagnosis of TBI. The examiner noted treatment for headaches in March 2014; however, there was no documented history or treatment for headaches. Prior to that treatment, the Veteran was documented complaining of headaches in March 1969, and the note specifically stated that the Veteran had no recent history of being struck on the head. The examiner found no other documentation of treatment or complaints of headaches. Based on these facts, the examiner found the claimed condition was less likely than not related to service. The Veteran has testified under oath that he was struck in the head during active service and that he has experienced chronic headaches since that incident. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, he did not complain of headaches until several decades following service. His lay contentions are thus of markedly lower probative value than, and are outweighed by, the November 2020 VA examination opinion. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for service connection for residuals of a head injury, with headaches, is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable here. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.