Citation Nr: 21070610 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-41 480 DATE: November 24, 2021 ORDER Entitlement to service connection for headaches is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's currently diagnosed acute intermittent tension headaches had their onset during his active service. CONCLUSION OF LAW The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REFERRED CLAIMS In its September 2020 decision, the Board granted service connection for right lower extremity radiculopathy, left lower extremity radiculopathy, and a right shoulder disability. The record does not reflect that these awards have been effectuated by the Agency of Original Jurisdiction (AOJ). See October 2020 Deferred Rating. Accordingly, these matters are REFERRED to the AOJ for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In decisions dated November 2018, September 2020, and May 2021, the Board remanded the matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for headaches Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. 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, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that his current headaches had their onset during his active service. As an initial matter, the Board finds that the Veteran has a current diagnosis of acute intermittent tension headaches. See January 2020 VA headaches examination report. Therefore, a current disability is established. Next, the Board notes that in a February 1998 Health Questionnaire for Dental Treatment rendered during the Veteran's active service, he endorsed headaches as a current medical problem. Accordingly, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's in-service headaches and his currently diagnosed acute intermittent tension headaches. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current headaches had their onset during his active service and have continued ever since. At the January 2020 VA headaches examination, the Veteran reported that his headaches first occurred during service in 1998 and continued ever since. The Veteran is competent to report observable headache symptoms and the Board finds no reason to doubt his credibility. Furthermore, VA treatment records dated April 2010 to September 2021 contain the Veteran's complaints of headaches and list headaches as an active medical problem. This tends to support the ongoing nature of the Veteran's headaches following his active service. The Board notes that in VA medical opinions dated July 2021 and September 2021, the VA examiner provided negative nexus opinions. However, the examiner did not address the February 1998 Health Questionnaire for Dental Treatment wherein the Veteran endorsed headaches. Indeed, in the September 2021 VA addendum medical opinion, the examiner wrote, "As to the Veteran's report that his headaches had their onset in service in 1998, worsened since 9/11, there is no documentation to substantiate the claim." (emphasis added). As it does not appear that the VA examiner considered all relevant evidence regarding the Veteran's headache symptoms in service, the Board affords the opinions little to no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As an aside, the Board notes that it previously found the January 2020 and November 2020 VA medical opinions to be inadequate in its September 2020 and May 2021 decisions. The Board acknowledges that there is no adequate medical opinion of record as to whether the Veteran's current headaches are etiologically related to his active service. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of headaches. See Kahana, 24 Vet. App. at 438. (Continued on the next page) For these reasons, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for headaches is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.