Citation Nr: 21061988 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-33 254 DATE: October 6, 2021 ORDER Entitlement to service connection for migraine headaches due to a head injury in service is granted. Entitlement to service connection for a nerve disorder of the face and head other than migraine headaches, to include trigeminal neuralgia, due to a head injury in service is granted. Entitlement to service connection for a right eye disability, to include right eyelid trichiasis, due to a head injury in service is granted. Entitlement to service connection for a scar of the face due to a head injury in service is granted. REMANDED Entitlement to service connection for residuals of a head injury other that migraine headaches, trigeminal neuralgia, a face scar, and trichiasis, to include traumatic brain injury (TBI), is remanded. FINDINGS OF FACT 1. The Veteran's migraine headaches are proximately due to a head injury in service. 2. The Veteran's trigeminal neuralgia is proximately due to a head injury in service. 3. The Veteran's right eyelid trichiasis is proximately due to a head injury in service. 4. The Veteran's face scar is proximately due to a head injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.1(n), 3.102, 3.301, 3.303. 2. The criteria for entitlement to service connection for trigeminal neuralgia are met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.1(n), 3.102, 3.301, 3.303. 3. The criteria for entitlement to service connection for right eyelid trichiasis are met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.1(n), 3.102, 3.301, 3.303. 4. The criteria for entitlement to service connection for a face scar are met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.1(n), 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1979 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and June 2016 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In this regard, new and material evidence was received within one year of the August 2015 rating decision that denied entitlement to service connection for a head injury, and thus that decision never became final. See 38 C.F.R. § 3.156(b); May 2016 VA Examination Reports. In July 2021, the Veteran testified at a videoconference hearing before the undersigned. The Veteran initially claimed entitlement to service connection for a head injury. He subsequently requested reconsideration of that claim, and also claimed entitlement to service connection for TBI, trigeminal neuralgia, trigeminal nerve disorder, and headaches. See March 2016 VA Form 21-526EZ. The Board has broadened and recharacterized the appeal as seeking service connection for all residuals of the in-service head injury, including the Veteran's facial scar and right eye condition. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 C.F.R. § 3.303. Direct service connection may be granted for claims that were incurred in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 C.F.R. § 3.301. VA regulations provide that the simple drinking of an alcoholic beverage is not willful misconduct. However, if after drinking purposefully to intoxication, intoxication results proximately and immediately in disability, the disability will be considered the result of the person's willful misconduct. Id. 1. Entitlement to service connection for migraine headaches is granted. The Veteran asserts that his migraine headaches are proximately due to an injury in service that occurred when he was riding a bicycle, fell, and struck his head. See, e.g., July 2021 Board Hearing Transcript. The Board agrees. The Veteran has a current diagnosis of migraine headaches. See, e.g., May 2016 VA-Contracted Headaches Examination Report. Thus, the first element of service connection, a current disability, is met. The record shows that the Veteran was treated for facial abrasions due to friction after falling from his bicycle. See March 2, 1985 Emergency Room (ER) Service Treatment Record (STR). The treatment record notes that the Veteran was "under slight influence of alcohol but still oriented to place and time." The ER treatment note is highly probative evidence as to whether the bicycle accident was due to intoxication. In this regard, while the Veteran was noted to be slightly intoxicated, the clinician did not attribute the accident to the Veteran's "slight" intoxication. This weighs against a determination that the bicycle accident was "proximately and immediately" due to intoxication. Moreover, the Veteran's record does not include any formal finding that the accident was due to willful misconduct, notwithstanding that the Veteran was currently undergoing alcohol rehabilitation and was subsequently discharged due to alcohol abuse. See Personnel Records; DD Form 214. The Board finds it highly likely that any misconduct would be recorded under these circumstances, and the absence of any such determination supports the determination that the bicycle accident was not "proximately and immediately" due to intoxication. In any event, the Board resolves any reasonable doubt as to this point in favor of the Veteran and finds that the bicycle accident was incurred in the line of duty. Thus, the second element of service connection, an injury in service, is met. With respect to the third element of service connection, an etiological relationship or "nexus" between the current disability and injury in service, there is evidence both for and against the claim. Against the claim is the opinion of a May 2016 VA-contracted examiner, who opined that the Veteran's claimed headache condition was less likely than not due to service. However, the examiner's rationale is premised solely on the absence of evidence of treatment for headaches in the Veteran's STRs. Thus, it is inadequate and entitled to no probative weight. The Board emphasizes that his inadequacy is particularly glaring here, where the Veteran was discharged expeditiously from service only a few months after sustaining the injury. However, remand is unnecessary to correct this deficiency, as there is sufficient favorable evidence of record to grant the claim. In this regard, the Veteran submitted multiple lay statements, including statements from individuals who knew him immediately post-discharge and noted his frequent complaints of headaches. See June 2017 Lay Statements. These statements are probative evidence of continuity of symptomatology since the in-service injury. Moreover, the Veteran submitted medical opinions in support of his claim. Dr. L.G.C. noted the Veteran's in-service bicycle accident followed by onset of right-sided headaches and opined that his headaches were post-traumatic and due to the accident in service. See March 2019 Dr. L.G.C. Opinion; see also March 2017 Dr. L.G.C. Opinion. Dr. L.G.C.'s medical opinion is probative. She is a medical doctor and thus competent to provide a medical opinion, and her opinion is based on an accurate history of the Veteran's disability, as it comports with the accident treatment note and post-service lay statements. Her rationale of an onset of headaches following head trauma is readily comprehensible. Thus, as all the evidence as to nexus weighs in favor of the claim, the third and final element of service connection is established and the appeal as to this issue is granted. 2. Entitlement to service connection for a nerve disorder of the face and head other than migraine headaches, to include trigeminal neuralgia, is granted. In addition to the diagnosis of migraine headaches, the Veteran has also been diagnosed with trigeminal neuralgia. See, e.g., May 2016 VA-Contracted Cranial Nerves Examination Report. Thus, the first element of service connection is met, and as noted above, the second element of service connection has been met. Thus, this issue turns on whether there is a nexus between his current disability and his injury in service. Against the claim is the opinion of a May 2016 VA-contracted examiner, who opined that the Veteran's trigeminal neuralgia is less likely than not due to the injury in service. However, the examiner's negative opinion is not probative, as the examiner's rationale is premised entirely on the absence of evidence of treatment in service. This opinion is inadequate for the same reasons that the examiner's headaches opinion is inadequate. Remand is not necessary to remedy this deficiency, as there is sufficient positive evidence of record to grant the appeal. In this regard, the Veteran submitted the June 2017 medical opinion of L.A.T., MSN, NP-C. L.A.T. describes how the Veteran was diagnosed with migraine headaches and trigeminal neuralgia and notes that the Veteran reports military service-related injuries that the author cannot verify, but also states that the Veteran's injuries are service-related. See June 2017 L.A.T. Medical Opinion. However, as noted above, the Veteran's in-service head injury is documented in his service treatment records. While the examiner does not set forth a detailed rationale, her statement that his injury is post-traumatic is self-evident. Accordingly, entitlement to service connection for trigeminal neuralgia is granted. 3. Entitlement to service connection for right eye disability, to include right eyelid trichiasis, is granted. Dr. L.A.T. also diagnosed a trichiasis of the right eyelid as a post-traumatic injury related to the Veteran's bicycle accident. March 2017 L.A.T. Medical Opinion. Accordingly, service connection is also warranted for this residual. 4. Entitlement to service connection for a scar of the face is granted. At the Board hearing, the undersigned observed a scar on the Veteran's face in the right cheekbone area. See Board Hearing Transcript at 4-6. His post-accident STRs note removal of the scab in this area. See STRs. The Veteran's enlistment examination report does not note a facial scar, and his separation examination report notes a scar due to superficial injury. See May 1985 Separation Examination Report. Accordingly, service connection for this residual is warranted. REASONS FOR REMAND 5. Entitlement to service connection for residuals of a head injury other that migraine headaches, trigeminal neuralgia, a face scar, and trichiasis, to include TBI, is remanded. The July 2015 VA examiner opined that the Veteran did not have a diagnosis of TBI. However, additional probative evidence has been received since the examiner rendered that opinion, including evidence establishing that the Veteran's migraine headaches and trigeminal neuralgia are related to the injury in service. On remand, the Veteran should be afforded another examination by an examiner who has access to this information. Complete VA treatment records and updated private treatment records should also be secured, as should any records related to a disability claim filed by the Veteran with the Social Security Administration (SSA). The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Secure records relating to any claim for disability benefits filed by the Veteran with the Social Security Administration, to include medical records. 4. Then schedule the Veteran for an examination as to the nature and etiology of his claimed TBI. The claims file should be available to the examiner. Any necessary testing should be performed. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran sustained a TBI as a result of the March 1985 bicycle accident documented in his STRs. In addressing this question, the examiner is advised that the Board has determined that the Veteran's current migraine headaches and trigeminal neuralgia (along with other superficial residuals) are etiologically related to the March 1985 bicycle accident. The examiner's attention is invited to the lay statements regarding the Veteran's onset of headaches following his bicycle accident, as well as the March 2017 and March 2019 medical opinions linking his trigeminal neuralgia and migraine headaches to this accident. A detailed rationale should be provided for every opinion. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should explain why that is so (insufficient evidence, insufficient state of general medical knowledge, examiner's own insufficient knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.