Citation Nr: 21076352 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-45 430 DATE: December 23, 2021 ORDER Service connection for tension headaches is denied. REMANDED Service connection for right foot onychomycosis is remanded. Service connection for left foot onychomycosis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that tension headaches began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for tension headaches are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from August 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in December 2020. The matter was then remanded for additional development in January 2021 and August 2021. The Board's prior remands included instructions for the Agency of Original Jurisdiction (AOJ) to search for the Veteran's complete service treatment records. In response, the AOJ made inquiries through the Defense Personnel Records Information Retrieval System (DPRIS), National Personnel Records Center (NPRC), and Department of Defense (DoD). Unfortunately, this only yielded one piece of evidence, a June 2003 post-deployment health assessment. Based on these efforts, it appears that further attempts to obtain any remaining service treatment records would be futile. Service connection for tension headaches In a case such as this, where service treatment records and service personnel records are unavailable, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of tension headaches as evidenced by the April 2021 VA examination. Headaches, as an organic disease of the nervous system, are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with headaches until 2015, years after his separation from service and outside of the applicable presumptive period. In various statements, the Veteran asserted that he sustained head trauma in service from separate incidents of a vehicular accident and combat training. He reported that he sought treatment, but that his headaches persistent. The available service treatment records include a June 2003 post-deployment questionnaire and a May 2005 medical history report. In both instances, the Veteran denied the presence of any headaches, dizziness, or head injury. An April 2021 VA examination diagnosed tension headaches, and the examiner concluded that they were less likely than not related to service. In addition to citing the lack of recurrent headaches noted in service, the examiner further stated that post-trauma headaches usually manifest as different symptomatology with post-concussion syndrome, indicating that the Veteran's headaches were not based on trauma. Therefore, even if head trauma occurred in service, the current disability is not related to it. There is no competent medical opinion to refute this conclusion or otherwise link current headaches to service. To the extent that the Veteran has related his condition to service, he has not shown the necessary medical knowledge or expertise to provide a competent nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In sum, the overall weight of the evidence is against a finding that the Veteran's headaches manifested to a compensable degree within one year of service, have been continuously present since service, or are otherwise etiologically related to service. Therefore, service connection is not warranted. REASONS FOR REMAND Service connection for right foot onychomycosis Service connection for left foot onychomycosis The Board cannot make a fully-informed decision on these claims because no VA examiner has opined whether the Veteran's onychomycosis, diagnosed in 2015, is etiologically related to service. Although the available service treatment records do not reflect any relevant findings, those records are very limited. Given the Veteran's report of athlete's foot and/or tinea pedis in service and continuous symptoms since then, the Veteran should be afforded every benefit of the doubt, and an examination and opinion should be obtained. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his bilateral foot onychomycosis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is any current disability, to include onychomycosis diagnosed in April 2015, at least as likely as not related to service, including the Veteran's report of athlete's foot and/or tinea pedis during service? Provide a rationale to support the opinion(s). In providing the requested opinion, please note that most of the Veteran's service treatment records are not available for review. Consider the Veteran's description of his/her in-service disease and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.