Citation Nr: 21004389 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-40 353 DATE: January 27, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to a traumatic brain injury (TBI), is denied. FINDING OF FACT The Veteran’s headaches are not secondary to his service-connected TBI, and are not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tension headaches due to service, or his service-connected TBI, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1973 to March 1975. In October 2019, the Board of Veterans’ Appeals (Board) remanded the claim for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, the AOJ granted service connection for TBI and mild neurocognitive disorder. See September 2020 AOJ Rating Decision. The AOJ also noted that the Veteran’s rating for neurocognitive disorder encompassed the symptoms of depressed mood and therefore, the Veteran claim for service connection for depression is contemplated in that evaluation as assigning separate evaluations for multiple mental disorders is prohibited as the evaluation of the same disability under various diagnoses is to be avoided. See October 2020 supplemental statement of the case. Thus, as this AOJ action represents a full grant of the benefits sought on appeal as to these issues, the issues are no longer on appeal and before the Board. The remaining issue on appeal is addressed in the discussion below. 1. Entitlement to service connection for headaches The Veteran contends that he his headaches are proximately due to, or aggravated beyond their natural progression, by his service-connected TBI. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310 (a). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or is secondary to a service-connected disability. The Board concludes that, while the Veteran had diagnoses of tension headaches and migraine headaches, the preponderance of the evidence weighs against finding that the Veteran’s headaches began during service or is otherwise related to an in-service injury, event, or disease, or alternatively, is proximately due to or aggravated by a service-connected disability. Service treatment records (STRs) are silent of complaints, treatment, or a diagnosis of headaches or head trauma. Notably, the Veteran’s March 1975 separation examination did not note head, face, neck, and scalp abnormalities or neurologic abnormalities. In August 2014, the Veteran underwent a Department of Veterans Affair (VA) examination and was diagnosed with tension headaches. The Veteran stated that he went to jail from 1989-1993 for cocaine possession. The Veteran admitted to using cocaine. Tension-type headaches began in 1989 many years after he was discharged from active service. The VA examiner opined that the Veteran’s tension-type headaches were related to cocaine use and that it was very unlikely that the headaches are related to his active service. Later in August 2014, the VA examiner was able to review the Veteran’s VA claims file and found that the Veteran abused cocaine and was diagnosed with alcohol abuse. He opined that the Veteran’s cognitive issues could be due to his drug and alcohol abuse. Further, the examiner noted that the Veteran did not report being knocked out or injured during a fight. In July 2015, a private physician opined that it was most likely, either solely or in large part, that the Veteran’s cognitive impairments, including dementia and headaches, were due to his repeated head injuries. The physician recorded that the Veteran boxed for the military and that he had multiple concussions. However, the physician did not address the Veteran’s post-service boxing or differentiate such in his opinion. Notably, the attachment to the private physician’s note was not dated or signed. During his June 2019 Board hearing, the Veteran noted that he was often hit in the head when he boxed for the military and that he occasionally had difficulty walking after bouts. The Veteran only recently noticed his headaches; however, his wife noticed that he had headaches for years. He stated that he boxed after service and that he currently coached boxers. Also, the Veteran stated that he used cocaine for less than a year and that he did not abuse alcohol. In October 2020, the Veteran underwent a VA examination for headaches. He was diagnosed with migraine headaches. The Veteran stated that he experienced a TBI while boxing in the Navy and that he now had headaches which he believed were related to his TBI. The Veteran stated that his headaches were manifested by sharp pain that occurred on both sides of the head with a dull achy sensation that had been intermittent, but now constant. He treated his headaches with aspirin. An October 2019 image study of the brain revealed no acute intracranial abnormality, yet found mild small vessel ischemic changes of a chronic nature. The examiner opined that the Veteran’s headaches are less likely than not incurred in or caused by in-service disease, event, or injury, to include head trauma. The examiner explained that the STRs were silent for a diagnosis or treatment for headaches/migraines. Also, the examiner opined that the Veteran’s headaches are less likely than not proximately due to or the result of the Veteran’s service-connected condition. Furthermore, the examiner opined that the Veteran’s headaches are neither caused by nor aggravated by his service-connected TBI. The examiner explained that post-traumatic headaches/migraines usually manifest within 7 days of a TBI. This is well known in the medical literature (Mayo Clinic, 2017). The Veteran was previously diagnosed with tension headaches that was thought to be related to his TBI. Persistent post-concussive symptoms, also called post-concussion syndrome, occurs when concussive symptoms last beyond the expected recovery period after the initial injury. Id. The usual recovery period is weeks to months. These symptoms may include headaches, dizziness, and problems with concentration and memory. Moreover, the Veteran’s medical records are silent for headaches within the first 20 years after service. The Veteran first reported headaches in the 2000s. Based on the above, the examiner found that there was no correlation between the Veteran’s headaches and in-service head trauma. In most people, symptoms occur within the first 7 to 10 days and go away within 3 months, rarely headaches persist beyond a year. Id. There are no evidence-based studies that go beyond 6 years of a TBI injury that report headaches of any kind (Defrin, 2014). The examiner explained that there was insufficient evidence to support aggravation beyond the natural progression of migraines. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his headaches are related to an in-service injury or event or to a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner that rendered the October 2020 opinion. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and it must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.