Citation Nr: 21002030 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-27 291A DATE: January 12, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to asbestos exposure, is denied. FINDINGS OF FACT The Veteran’s headaches were not manifested during active duty and are not etiologically related to service, including due to any alleged asbestos exposure. CONCLUSION OF LAW The Veteran’s headaches were not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1955 to November 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A copy of the transcript has been associated with the Veteran’s electronic claims folder. In August 2020, the Board remanded the matter for further development, to include obtaining a medical opinion. The Board finds that there has been substantial compliance with its remand directives. Entitlement to service connection for headaches The Veteran contends that he is entitled to service connection for headaches because he was hit in the head during service and spent over a week in the hospital while stationed in Korea. See October 2009 VA Form 21-526. He testified that he has experienced headaches since the injury in November 1956. See Board Hearing Transcript, p. 5. Alternatively, he claims, without specificity, that his headaches are secondary to asbestos exposure. Id. at Section II, Question 6a. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. Initially, the Board notes that the Veteran’s service treatment records are unavailable, as they were housed in that section of the National Personnel Records Center’s St. Louis storage facility which burned in a 1973 fire. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The RO issued a formal finding of unavailability of the records in January 2010 and advised the Veteran of alternative methods of supporting his claim, including the Veteran’s own submission of any service treatment records in his possession. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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 - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran’s headache disability is not listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). The Veteran relates his headaches to his alleged in-service asbestos exposure. However, there is no corroborative evidence that he was indeed exposed to asbestos. In November 2019, the RO requested that the Veteran provide further information regarding his alleged exposure. The Veteran failed to provide the requisite information. The duty to assist is a two-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nevertheless, for the purposes of full consideration of the Veteran’s claim, the Board will proceed with a full analysis of the Veteran’s claim. Private treatment records indicate that the Veteran underwent a CT scan in 2007 at the direction of Dr. N.N based on the Veteran’s subjective reports of being hit on the head and experiencing symptoms of headaches. The CT scan was normal. The Veteran testified that he experienced headaches shortly after service and was treated by private providers. However, no further records from that period were produced. In an October 2020 medical opinion, the clinician opined that the Veteran’s headaches were less likely than not related to service. The clinician reasoned that the Veteran didn’t suffer from post-concussive headaches but rather acute intermittent tension headaches. The clinician noted the Veteran’s medical history, which included a CT scan in 2007 which did not show a lump on the Veteran’s head. “Even with the conceded blow to the head, there is no medical evidence, and certainly nothing suggesting post-concussive headaches.” The Board finds the October 2020 medical opinion report highly probative. The clinician’s opinion addressed all evidence and the rationale was based on sound medical principles. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The clinician considered the objective evidence, i.e. medical reports, and the subjective evidence, i.e. the Veteran’s lay reports, and concluded that the Veteran’s headaches were not related to active service. The Board notes that although the Veteran’s service treatment records were unavailable, the October 2020 clinician considered the Veteran’s statements regarding the in-service injury as true and ultimately concluded that the Veteran’s headaches were not related to the injury. It is clear that the Veteran believes that a nexus exists between his disability and service. Sometimes such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the question of whether there exists a nexus in this case is medical in nature. Of note in this regard are the complexities of headaches. The October 2020 clinician relied on the CT scan (a highly specialized medical testing tool) in his analysis. Only those with medical knowledge, training, and/or experience therefore are competent to opine as to nexus. See Jones v. West, 12 Vet. App. 460 (1999). The Veteran, as a layperson without such knowledge, training, and/or experience, is not competent to render an opinion that the required nexus exists. Thus, while the Board has considered the Veteran’s statements, it finds the VA examination opinion to outweigh them. Further, the Board does not assign probative value to the Veteran’s statements that he has experienced headaches continuously since 1956. In that regard, although the Veteran is competent to report symptoms of continuous symptoms of headaches, the Board finds the Veteran’s reports of continuity of symptoms of headaches since service separation are not credible. The evidence of record indicates that the Veteran suffers from intermittent tension headaches. The definition of the word intermittent in and of itself implies irregular intervals or occurrences that are not continuous in nature. This would be in direct contradiction to the Veteran’s assertion that his symptoms have been continuous. Also, it is reasonable to infer that if the Veteran experienced continuous symptoms, he would have reported them sooner. Although he testified that he received treatment from Dr. Davis shortly after service, there were no records from Dr. Davis produced. The Veteran reported on his VA Forms 21-4142 that he sought treatment as early as 1970 for his headaches with Dr. R.R.; in 1972 with Dr. M.A.D. and again in 1981 with Dr. K.S. Records from either named provider were not produced. Notwithstanding, the Veteran was discharged from service in 1957. These treatment dates would have occurred more than 10 years after service discharge. (Continued on next page.) Given that the Board has found the unfavorable October 2020 VA medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran’s claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.