Citation Nr: 21077215 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-28 059 DATE: December 29, 2021 ORDER Entitlement to service connection for the Veteran's chronic headache condition is granted. FINDING OF FACT The Veteran's headache condition is at least as likely as not etiologically related to his active-duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the Veteran's chronic headache condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1966 to July 1969. The Veteran died in September 2013. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Headaches The Appellant seeks service connection for the Veteran's headache condition which she contends originated in the Veteran's active-duty service. The medical evidence confirms that the Veteran had a diagnosis of a chronic headache condition. See December 2010 VA primary care note. The central issue that must be resolved is whether the Veteran's disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) document that he was treated in service for multiple shrapnel injuries after being wounded by enemy mortar fire while in Vietnam. In a September 1976 correspondence the Veteran reported that he had severe headaches which he attributed to the injuries he sustained from the mortar blast in service. Similarly, in a December 2010 VA examination the Veteran reported that he experienced severe headaches ever since his in-service injury. The Veteran's post-service treatment records include an August 2005 diagnosis of cervicogenic headaches and a December 2010 diagnosis of chronic headaches. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Veteran was afforded multiple VA examinations throughout the record, some in response to multiple prior Board remands. However, the Board finds these examinations inadequate for adjudication purposes. The VA examiners' opinions were based on the lack of evidence of treatment of headaches in the Veteran's medical records. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. The medical opinions based on a lack of treatment records regarding the Veteran's headaches are therefore of limited probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Further the examiners did not acknowledge the Veteran's December 2010 diagnosis of chronic headaches. The examiners either provided no basis for their rationales which could be properly weighed, did not comply with board remand instructions, or based their rationales on inaccurate factual premises. As such, the Board affords the VA examiners' little weight. The Board has considered the Veteran's lay statements in support of the claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Appellant is competent to report what she has directly observed. However, they are not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran reported that he experienced headaches in service, which began after he was injured in a mortar attack and persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing headache pain to be at least as probative as the above-noted VA examiners' findings, as the Veteran is truly the only person capable of such observation. The evidence is thus at least evenly balanced as to whether the Veteran's headache condition was etiologically related to his active-duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the Veteran's claimed headaches is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.