Citation Nr: 21066497 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-31 158 DATE: November 1, 2021 ORDER Service connection for headaches is denied. FINDING OF FACT The preponderance of the evidence is against finding that headaches began during active service, within one year of separation from service, or are 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1990 to December 1997. In September 2019, the Board of Veterans' Appeals (Board) remanded this matter for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for headaches. The Veteran seeks service connection for headaches, which he claims are related to an incident in service wherein he hit his head while being assaulted on the flight deck of a C130. The Veteran's VA treatment records and the January 2020 VA examination establish that he has a headache disability. Therefore, the first element necessary to establish service connection (the existence of a current disability) has been met. The remainder of the elements, however, have not been satisfied. Review of the record shows the Veteran's service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to headaches. The Board notes that the Veteran declined to undergo a full medical examination at separation from service. Instead, the Veteran was provided a medical assessment wherein he indicated that he did not suffer from any injury or illness in service for which he did not seek medical care. Further, the Veteran affirmatively noted that he did not have any other questions or concerns about his health. See STR Medical. Following service there is an absence of documented complaints, treatment, or diagnosis for headaches until many years following separation from service. Specifically, postservice VA treatment records show that in December 2010, the Veteran established medical care as a new patient. He indicated he had not been receiving primary care, but he did not have any chronic illnesses either. His only complaint was that he experienced headaches two or three times per week, which were characterized by "a lot of pressure." Notably, however, he did not indicate how long he had been experiencing these headaches. See VA Treatment Record received November 2019. In June 2016, the Veteran was hospitalized following a five-day history of headache and seizure-like activity. On evaluation, the Veteran was diagnosed with herpes encephalitis. In October 2016, the Veteran reported years of chronic daily headaches that were initially worse after his bout of herpes encephalitis in June 2016, but the headaches were now back to baseline daily bilateral frontal headaches with occasional radiation to the occipital region. The Veteran also told VA clinicians that his headaches had occurred in service, but he had never sought evaluation or treatment for such. See VA Treatment Record received January 2020. The VA treatment records do not contain any nexus opinion attributing the Veteran's current headache condition to service. In January 2020, the Veteran underwent a VA examination to assess the nature and etiology of his headache condition. The examination included a review of the available records in conjunction with an interview with the Veteran. The examiner diagnosed the Veteran with tension headaches. Historically, the Veteran reported that his headaches had their onset in the 1990's after hitting his head while being assaulted on the flight deck of a C130. Following a review of the record and an examination of the Veteran, the examiner opined that the Veteran's headache condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In her rationale, the examiner explained that the Veteran's STRs were silent for any head trauma in service related to an assault. Additionally, she held that the record was silent for any disciplinary actions. Further, she noted that the Veteran's separation examination was silent for any headache condition. The examiner acknowledged that head trauma could contribute to the etiology of headaches; however, she held that the record did not contain sufficient evidence indicating that an assault occurred. Additionally, the examiner remarked that, even if the Veteran's contended assault occurred, the record contained insufficient clinical evidence to link the incident to his current condition. Lastly, she noted that a pattern of chronicity was not established. See January 2020 VA Examination. The Board finds the January 2020 VA examiner's medical opinion to be probative and persuasive as it was based on an examination of the Veteran, review of the record and an accurate medical history, and was supported by a well-reasoned rationale. There are no medical opinions or other competent evidence of record to the contrary. The Board acknowledges the Veteran's reports of suffering a head injury in service; however, finds such reports to not be credible. In this regard, despite having the opportunity to do so in his separation medical assessment, the Veteran did not report suffering from any injury or illness in service for which he did not seek medical care. Further, the Board does not find the Veteran's reports of experiencing chronic headaches since service to be credible. In that regard, the contemporaneous medical records reveal that the first time the Veteran complained of headaches was in 2010, decades after separation from service, when he established medical care with VA. At that time, although the Veteran reported experiencing headaches multiple times a week, he denied having any chronic illnesses and also did not indicate that his headaches had been present since service. It was not until October 2016 that the Veteran reported to his VA clinicians that he had been experiencing headaches since service. The Board notes these statements were offered after the Veteran filed his July 2016 claim for service connection. Therefore, the Board finds that, while the Veteran is competent to report having experienced headaches, his complaints were made in a compensation-seeking setting and are contradicted by his contemporaneous statements denying headaches in service, including at his separation medical assessment. Accordingly, the Board finds the Veteran's more recent allegations of experiencing chronic headaches since suffering a head injury in service to be self-serving, not credible, and contradicted by the record. While the Veteran is competent to report having experienced headaches, he is not competent to provide a diagnosis in this case or determine that these headache symptoms were manifestations of head trauma in service. The issue of nexus is medically complex and outside the competence of the Veteran because the record does not show that either has the skills or medical training to make such a determination. Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2020 VA examiner's opinion. (Continued on the next page) Based on the foregoing, it is not shown that the Veteran's current headache condition had its onset in service, within one year of separation from service, or was otherwise caused by service, to include hitting his head after being assaulted on the flight deck of a C130. 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, the doctrine is not applicable. Service connection for headaches is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.