Citation Nr: 21004162 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-01 722 DATE: January 26, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to service-connected TBI, is denied. REMANDED Entitlement to service connection for right shoulder disability, to include as secondary to service-connected TBI, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s currently diagnosed migraine headaches is related to service or secondary to a service-connected disability, developed to a compensable degree within a year after separation from service, or that the Veteran experienced symptomology from migraine headaches continuously from service. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches, to include as secondary to service-connected TBI, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1968 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017 and December 2019, the Board remanded the Veteran’s claims for additional development, to include obtaining VA medical treatment records and VA examination reports. VA treatment records have been associated with the claims file and the Veteran was provided VA examination and opinions in December 2018 and September 2020. 1. Entitlement to service connection for headaches, to include as secondary to service-connected TBI The Veteran contends that his headaches are due to an in-service head injury. Alternatively, he contends that his headaches are due to his service-connected TBI residuals. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. To substantiate a claim for secondary service connection, evidence is needed to establish that the nonservice-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Headaches are not specifically listed among the chronic diseases in 38 C.F.R. § 3.309(a) although they may be considered an organic disease of the neurological system which is listed. Initially, the Board acknowledges that in a June 2018 rating decision, the RO granted service connection for TBI residuals based on an in-service head injury. As such, the Board will consider direct and secondary theories of entitlement to service connection for headaches. The claims file contains conflicting evidence regarding the current disability element. During an October 2018 VA headaches examination, the Veteran was provided a diagnosis of migraine headaches and VA treatment records since 2018 list headaches under a problem list or past medical history. However, in a September 23, 2010 VA medical opinion, an examiner opined that the Veteran’s reported symptoms and lack of prostrating headaches do not meet the diagnostic criteria for migraine headaches. As the evidence is in equipoise regarding whether the Veteran has a current disability, reasonable doubt has been resolved in the Veteran’s favor to find that he has a current disability of migraine headaches. Thus, the current disability element for this claim has been established. Service treatment records (STRs) show that a piece of lumbar fell approximately 10 feet and landed on the Veteran’s head in September 1969. He was admitted to an emergency room and preliminary diagnoses of 6 inch laceration to scalp, and possible concussion, were provided. X-rays of the head were within normal limits. A September 1969 emergency room report notes that the Veteran was struck in the head, he had a laceration to the scalp, and that a skull series was within normal limits. He was advised to bed rest for 24 hours. On January 1970 separation, neurological clinical evaluation was normal. In June 2010, the Veteran was afforded VA neurological and TBI examinations. The VA examiner reviewed the claims, interviewed the Veteran and diagnosed a grade 3 concussion (mild TBI) with minimal neurocognitive residuals, such deficits in executive function and memory. The examiner thoroughly documented the Veteran’s in-service injury where he hit his head on a beam, his symptoms thereafter, and his current symptoms. The Veteran reported full resolution of headaches after the impact. During the current examination, he reported having one to two headaches per week. In support of his claim, in November 2013, the Veteran submitted a TBI-related medical article. The TBI article cited a study reflecting that a certain percentage patients who visit an emergency room or where hospitalized for a traumatic or nontraumatic brain injury had a TBI. In October 2017, the Board remanded the claim to obtain a VA medical opinion on the nature and etiology of headaches. The Veteran was afforded a VA headaches examination in October 2018. He reported residual headaches attributed to a 1968 TBI injury during service. He stated that he was hit on the head with a 1,000 pound beam and that he currently continues to have headaches not treated with medication. The examiner acknowledged the June 2010 examination notation that the Veteran’s post-traumatic headaches had resolved, but found that the Veteran currently had a diagnosis of migraine headaches. The examiner provided a negative nexus opinion on the relationship between the Veteran’s current migraine headaches and service. As rationale, the examiner referenced the June 2010 VA TBI examination findings that headaches related to TBI had completely resolved at the time of the exam, and stated that current VA treatment records do not list headaches as a problem. Although a current diagnosis of migraine headaches was provided, the examiner concluded that the Veteran’s current headaches are unrelated to his service because there is no documentation of an onset date. As for secondary service connection, the examiner opined that the Veteran’s current headaches are not proximately due to or the result of his service-connected TBI residuals because there is no evidence of any nexus. In a December 2019 remand, the Board found the October 2018 VA headaches examination inadequate because it inaccurately characterized the evidence of record and did not comply with prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that subsequent development includes conflicting medical opinions. In a January 2020 VA medical opinion, an examiner provided a negative secondary nexus opinion on the relationship between the Veteran’s current migraine headaches and his service-connected TBI residuals because there is no evidence of headaches in service, and current medical records show migraine headaches but do not identify a specific injury. A medical opinion on direct service connection was not provided. In a September 3, 2020 dated VA medical opinion, an examiner provided positive nexus opinions on direct and secondary service connection. For direct service connection, the examiner opined that the Veteran’s current migraine headaches are related to his traumatic head injury with “possible concussion” during service because he began having headaches at that time. The examiner acknowledged the Veteran’s report that his posttraumatic headaches had resolved, but stated, regardless, “he suffered a significant head injury while in service that could have le[d] to permanent changes in his brain.” Referencing medical literature that links migraine headaches to TBIs, the examiner concluded that the Veteran’s current migraine headaches are due to his in-service head injury. As for secondary service connection, the examiner opined that the Veteran’s current migraine headaches are proximately due to or caused by his service-connected TBI residuals because STRs show headaches at the time of his in-service TBI injury and the 2018 VA TBI examination noted frequent headaches. The examiner reiterated that the Veteran’s TBI injury could have led to permanent changes in his brain and referenced medical literature linking migraine headaches to TBIs. In a September 23, 2020 dated VA medical opinion, an examiner provided negative nexus opinions on direct and secondary service connection, including aggravation. The examiner acknowledged that the claims file contains conflicting medical opinions, but opined that such positive opinions were based on the Veteran’s subjective reports or erroneous conclusions regarding the natural history of post-traumatic headaches. The examiner concluded that the weight of objective evidence contains no significant conflicts pertaining to the lack of a causal relationship between the Veteran’s current headaches and service, including service-connected TBI. The examiner provided an elaborate rationale to support the conclusions reached, including references to STRs, VA treatment records, and conflicting medical opinions. The examiner acknowledged STRs showing a September 1969 probable concussion, but the Veteran did not seek treatment for headaches after this incident during service. The examiner conceded that it would be reasonable for the Veteran to have some initial headaches due to the nature of his injury, but he did not seek treatment through separation. The examiner referenced the June 2010 VA examination notation that post-traumatic headaches had fully resolved and no comment on continuity of reported headaches. As for the October 2018 VA examination diagnosis of migraine headaches, the examiner found that this assessment was based solely on subjective complaints from the Veteran and no objective evidence. Contrary to this diagnosis, the examiner referenced VA treatment records from 2009 through September 2018 containing no complaints of or treatment for headaches, instead, the Veteran denied headaches. The first mention of recurrent headaches was in October 2018 VA treatment records when the Veteran reported having 2 to 3 headaches per week. A diagnosis was not provided. Instead, the treating physician attributed headaches to possible related alcohol use. As no treatment was given, the examiner found that the Veteran’s October 2018 complaints of headaches were not severe or debilitating. Since October 2018, VA treatment records have listed headaches under past medical history. As for conflicting medical opinions, the September 23, 2020 VA examiner indicated review of the September 3, 2020 VA medical opinion, however, the examiner opined that the positive medical opinion failed to account for the lack of “temporal proximity of the veteran’s active headaches to the TBI in the service.” The examiner stated that headaches are related to a TBI if the onset occurs within 7 days of the TBI. However, here, the Veteran’s post-traumatic headaches fully resolved before his separation as supported by STRs showing no complaints of headaches on separation, the June 2010 VA headache examination report showing that posttraumatic headaches had fully resolved, and lack of post-service treatment for headaches until October 2018. As such, the examiner concluded that the September 3, 2020 VA medical opinion was invalid. The Veteran has maintained that his headaches are related to his in-service head injury, or in the alternative, his service-connected TBI residuals. Although the Veteran is competent to describe his symptoms, he is not competent to independently opine as to the specific etiology of his headache disability as this is a medically complex issue with multiple potential etiologies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). As discussed above, the claims file contains conflicting medical opinions on whether the Veteran’s current migraine headaches are related to his in-service head injury, or his service-connected TBI residuals. The Board gives little probative value to the September 3, 2020 VA medical opinion because the examiner failed to reconcile conflicting evidence, including prior June 2010 and October 2018 VA medical examinations and opinions, and post-service VA medical records that do not show complaints of headaches until 2018. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998). Further, although the examiner provided a medical opinion on causation, an opinion on aggravation was not provided. In contrast, the September 23, 2020 VA medical opinion provided a detailed explanation for the conclusion reached. The Board finds the examiner’s opinion particularly probative because it addressed both causation and aggravation and provided rationale supported and consistent with the evidence of record. Further, the medical opinion is consistent with the January 1970 separation examination showing a normal neurological clinical evaluation, the Veteran’s own statements denying headaches related to the in-service head injury (See June 2010 VA Examination Report), and documented VA medical history showing no complaints of or treatment for headaches until 2018, approximately 48 years after separation from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). In addition to the foregoing, the Board notes the Veteran has not submitted or identified any lay evidence alleging continuity of relevant symptomatology since service, such as continuous migraine headaches, and there is no medical evidence or opinion of record that suggests the Veteran’s current migraine headaches may be related to service. Based on the forgoing the Board finds that service connection for headaches is not warranted. In sum, because the preponderance of the evidence fails to show that migraine headaches started in service or is due to, or aggravated by a service-connected disability, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disability, claimed as secondary to TBI, is remanded The Veteran claims that his right shoulder disability is due to his service-connected TBI residuals. Pursuant to a December 2019 Board remand, a VA examination and opinion was obtained in January 2020. The examiner opined that the Veteran’s right shoulder strain is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected TBI condition. As rationale, the examiner stated, “[t]here is an absence of evidence in medical record regarding his shoulder injury, and no evidence of a shoulder condition in service.” Instead, the examiner attributed the shoulder condition to a recent onset. The Board finds the VA examiner’s opinion inadequate. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the January 2020 VA examiner failed to provide any rationale for the negative nexus opinion other than the absence of evidence in medical records. In this regard, medical examiners may not rely on the absence of medical records to conclude no relationship exists between the claimant’s current disability and their military service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, although the examiner provided a medical opinion on causation, an opinion on aggravation was not provided. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). As such, a new opinion is necessary. The Board acknowledges that a VA opinion on direct service connection was subsequently obtained in August 2020. However, the examiner did not provide an opinion on secondary service connection. Therefore, a remand is necessary in order to obtain a new medical opinion that addresses the theory of secondary service connection. 2. Entitlement to a TDIU rating The inferred claim for TDIU is intertwined with the outstanding service-connection claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran’s right shoulder disability. The Veteran’s claims folder must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should indicate whether it is at least as likely as not, (50 percent probability or greater), that the right shoulder disability was (A) caused or (B) aggravated beyond its normal progression by the service-connected TBI residuals. Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.