Citation Nr: 21064914
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 14-25 552
DATE: October 22, 2021

ORDER

Entitlement to service connection for headaches is denied.

FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's headache disability began during active service, was aggravated beyond natural progression by service, or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1966 to November 1970. 

In June 2016, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ) with the Board of Veterans' Appeals (Board).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a VA Regional Office (RO). 

The Board denied the Veteran's claim for service connection in November 2019. Subsequently, the Veteran appealed the denial of his service connection claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a November 2020 decision, the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board's November 2019 decision, and remanded the matter to the Board for action consistent with the ruling. In an April 2021 decision, the Board remanded the Veteran's claim for service connection for headaches for an addendum VA medical opinion. The RO substantially complied with the Board's remand directives, and the Board may now proceed with adjudication.

1. Entitlement to service connection for headaches

The Veteran asserts that their headache condition arose during or as a result of active service, or, in the alternative, preexisted service and was aggravated beyond its natural progression by active service.

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d).

For purposes of establishing service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994).

If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a preexisting condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

If, on the other hand, a preexisting disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a preexisting disability has been aggravated. According to this statute and regulation, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

Concerning this, mere temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

In this case, the Board finds that the most probative evidence of record consists of the Veteran's lay statements, his service treatment records (STRs), his VA and private treatment records, and the relevant VA examination reports in the claims file.

Regarding the Veteran's lay statements, the Veteran claims entitlement to service connection for headaches, which he contends either began during his active military service or prior to his active military service and were aggravated beyond their natural progression during his active military service. See June 2016 Board Hearing.

The Veteran's STRs contain a note dated in November 1966 indicating that he complained of a headache during a visit with a physician (or other healthcare provider) that month, and they also contain another note dated in July 1967 indicating that he had occasional headaches. However, they do not show that he made any other specific complaints of headaches during his active military service.

Neither the Veteran's VA nor his private treatment records indicate that he has a current headache condition that is a continuation of his in-service headaches, or that was caused or aggravated by any injuries, diseases or events that he sustained, incurred or experienced during his active military service. Additionally, the Veteran's private treatment records show that he was hit by a car and injured in or about 2003 (hereinafter referred to as the auto accident). His private treatment records indicate that his injuries included but were not limited to a closed head injury, cervical spondylosis, paresthesia, and cord contusion.

Aside from those treatment records, there is also a July 2011 letter from one of the Veteran's private physicians in the claims file, and it indicates that the physician opined that the Veteran "has had intermittent headaches all along," or, in other words, since the physician has been treating the Veteran. The physician stated that he had been treating the Veteran for many years. However, the physician did not state when exactly he began treating the Veteran. Nevertheless, the physician also stated in that letter that the Veteran told the physician that he has had the headaches since his military service, and the physician opined that the current headaches are "pretty much a continuation of the same headaches." The physician, however, did not mention whether he or she reviewed any of the Veteran's STRs, treatment records, or other records prior to forming that opinion.

The Veteran was afforded VA examinations to determine the etiology of his headaches in November 2011, September 2016, and June 2019. After review of the Veteran's claims file, the November 2011 examiner opined that the Veteran's current headaches are less likely than not related to his occasional headaches in the military. The examiner's rationale was that there was not enough evidence that the current migraines are related to the occasional headaches that the Veteran reported during his active military service.

The September 2016 VA examiner also reviewed the Veteran's claims file, and they opined that the Veteran's current headaches are secondary to a combination of a closed head injury (concussion) and chronic cervical degenerative disc disease (DDD)/degenerative joint disease (DJD). The examiner stated that the closed head injury and DDD or DJD were all sustained as a result of the above-mentioned auto accident in 2003, and that they were unrelated to the Veteran's active military service. The examiner's rationale was essentially that there is no documentation of the Veteran experiencing headaches between the time of his discharge in 1970 and the time of his injury in the auto accident in 2003.

Finally, the June 2019 VA examiner also reviewed the Veteran's claims file, and this last examiner opined that the Veteran's headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness (in other words, the in-service headaches). In the rationale for that opinion, this examiner also cited the absence of any record of headaches during the 30-plus year period between the time of the Veteran's in-service complaints of headaches and his more recent complaints of headaches beginning at the time of the auto accident in 2003. The examiner also stated that the Veteran's in-service headache condition was acute, and not chronic, and that the injuries sustained in the 2003 auto accident "ha[ve] to be taken into account as being causative agents of the headaches [that the Veteran] is experiencing currently." The June 2019 examiner also opined that the Veteran's current headaches clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness (including the in-service headaches). However, the examiner also confusingly stated in the rationale for that opinion that the headaches were not preexisting. Given this contradiction, the Board lends the June 2019 VA examination report only limited probative weight regarding the theory of aggravation of a pre-existing condition.

In the June 2021 VA addendum medical opinion, the VA examiner found that the Veteran's headaches were less likely than not related to service, they clearly and unmistakably preexisted service, and they were clearly and unmistakably not aggravated beyond their natural progression by active service. The examiner considered the Veteran's lay statements and noted that while he did complain of headaches during service, the STRs did not reflect a chronic headache problem, and there was no documentation of chronicity of the condition or treatment for it post-service. Additionally, the Veteran experienced a head and spinal injury in 2003 and this likely exacerbated his symptoms. The Veteran also wore contact lenses or glasses, which could cause headaches. Given the physician's expertise and consideration of the Veteran's lay statements, the Board finds the June 2021 VA medical opinion to be the most probative evidence of record regarding the theory of aggravation of a preexisting condition.

The Veteran has consistently maintained that his headaches were caused or aggravated by his active service, and he has experienced headaches since active service. 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). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the various VA examination opinions and medical evidence of record.

Upon review of all of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has a disability manifested by headaches that began during active service, or is otherwise related to an in-service injury or disease. The evidence also does not support that the Veteran's headache condition was aggravated beyond natural progression by active service, per the June 2021 VA addendum medical opinion. All the VA examiners reviewed the Veteran's claims file before rendering their opinions, but the physician that wrote the July 2011 letter mentioned above did not indicate that he reviewed any of the Veteran's records before rendering his/her opinion. Based on these facts, the Board finds the VA examinations and medical opinions of record more probative than the July 2011 private physician's letter. The Board also finds those examination reports more probative than the Veteran's lay statements, since the VA examiners' opinions are based on a review of the Veteran's claims file and are supported by the remainder of the competent medical evidence of record, including the Veteran's STRs, VA and private treatment records (with the exception of the physician's letter). On the other hand, the Veteran's statements are not supported by the remainder of the evidence (again, with the exception of the physician's letter). Those VA examination reports indicate that the Veteran's current headaches were not incurred or aggravated beyond their natural progression during his active military service, and, even further, that they are distinct from the headaches that he complained of during said service. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim.

Accordingly, the Board finds that the Veteran is not entitled to service connection for headaches, and the claim 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 in this appeal. 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.