Citation Nr: 21077616 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-00 848 DATE: December 30, 2021 ORDER Entitlement to service connection for migraines, to include migraine variants, is denied. FINDING OF FACT The most probative evidence of record weighs against a conclusion that the Veteran's headache disorder is related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for migraines have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.110, 3.159, 3.303, 3.304, 4.2, 4.3, 4.6, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. from October 1998 to May 2006, to include service in the SW Asia Theater of Operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a May 2018 letter, the Veteran cancelled his May 2018 travel Board hearing. See May 2018 Third Party Correspondence. Also, in his May 2020 substantive appeal, the Veteran indicated, "I do not want an optional Board hearing." See May 2020 VA Form 9, Appeal to Board of Veterans' Appeals. The Board considers the issue of a hearing waived. The matter was remanded by the Board in May 2019 and again in July 2021 for VA examinations "to assist in determining the nature and etiology of his migraine...disorder." See May 2019 and July 2021 BVA Decisions. The appeal is returned to the Board for further consideration. 1. Entitlement to service connection for migraine headaches. The Veteran contends that he had "headaches while on active-duty service." See April 2014 VA Form 21-0958, Notice of Disagreement. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by September 2013 VA Form 21-526EZ, Application for Disability Compensation. See also March 2014 VA Rating Decision Narrative, October 2016 Statement of the Case, and September 2017, April 2020, and September 2021 Supplemental Statements of the Case. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A. As for VA's assistance to the Veteran, service treatment records and VA treatment records were obtained and VA examinations were performed. Moreover, the entire record was available to the July 2019 and September 2021 examiners, and the testing was sufficient to address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.124a; see also July 2019 and September 2021 VA Headaches Conditions examination reports. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See May 2020 VA Third Party Correspondence ("Please be advised that I am in the process of obtaining additional medical evidence. I reserve the right to submit additional arguments upon submission of any new medical evidence."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. The RO's efforts have substantially complied with the instructions contained in the March 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Any potential deficiencies identified in the July 2019 examination were cured by the September 2021 examination. To the extent that the examinations were able to record and address any applicable rating criteria, the Board will rely on the July 2019 and September 2021 examinations in evaluating the Veteran's claim for service connection. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). Further development and further assistance by VA are not warranted. An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In addition to the requirements for service connection noted above, where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307, and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), which does not include headaches. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although a claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. Factual Background The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). The Veteran claimed that he experienced headaches during active-duty service. See Notice of Disagreement of April 2014. When examined by VA in April 2014, he stated that he experienced headaches two to three times a week and has had them for "some time now." Analysis According to 38 C.F.R. § 4.6, "The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of the disability." In the March 2014 medical examination, the Veteran reported: "disciplinary infractions: 2004 positive UA cannabis; 2005 positive UA cannabis down ranked from E4-E1 and was discharged and received UCMJ." See March 2014 VA Initial PTSD examination report. The Veteran reported a "General discharge (Under Honorable Conditions) for misconduct (drug abuse) on May 31, 2006." See July 2017 VA Initial PTSD examination report. Although credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). The Veteran has a diagnosis to satisfy the first element of service connection (See July 2019 and September 2021 VA Headaches examination reports). Other evidence shows some inconsistencies in the Veteran's lay evidence, within statements, with other statements, and with other evidence, create credibility issues regarding an in-service event and a nexus to service, the second and third elements required for service connection. The Veteran provided lay statements at VA examinations that his headache condition "started in 2005." See July 2019 VA Headaches examination report. The Veteran also reported: "being overseas in Iraq for combat operations and was the gunner and exposed to two blasts, which caused him to suffer a dazed and confused state. He was always helmeted. After this event, he states headaches began and continue and are stable in nature." See September 2021 VA Headaches examination report. However, the Veteran completed two post deployment health assessments denying "Headaches...Dimming of vision, like the lights were going out...Dizziness, fainting, light headedness...Ringing in the ears...direct combat...unresolved medical or dental problems....concerns about possible exposures or events during [the 2004 2005 Iraq] deployment." See February and March 2005 Post Deployment Health Assessments. Further, the Veteran reported in 2018 VA treatment that he "has had migraines for 4-5 years." See September 2018 VA RN Call Center Triage Note. The Board also notes that the contemporaneous medical evidence has greater probative value than the Veteran's reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). Both the July 2019 and the September 2021 VA examiners opined that it was less likely than not that the Veteran's headaches are due to a reported mortar attack while he was in Iraq between 2004 and 2005. The July 2019 VA examining physician noted the lack of service treatment records showing a complaint, diagnosis, or treatment for sinus-related conditions or for migraine, headache, or neurological conditions. See July 2019 VA Headaches examination report. The Veteran had many contemporaneous opportunities to report headaches during the period right after service and failed to do so when specifically asked. A headache disorder was not diagnosed within one year of service discharge. Conclusion In summary, to the extent the Veteran may opine as to medical diagnoses and etiology, the Board finds that the Veteran's lay assertions in the present case are outweighed by the medical evidence of record, including the July 2019 and September 2021 VA examinations. Licensed physicians have the training, knowledge, and medical expertise on which to rely in order to form a medical opinion. The Board has considered the statements of the Veteran. Due to the Veteran's character of discharge and his conflicting lay evidence, the Board finds the Veteran's statements to be lacking in credibility. Therefore, the medical evidence is afforded more probative value and weight. The Veteran does not have competent and credible evidence of an in-service event or nexus to service during the relevant appeal period. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The guiding factors in evaluating the probative value of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These standards are met in the VA examinations. The July 2019 and September 2021 VA medical examinations are the most probative evidence of record on the question of diagnosis and nexus to service. The reports were based on an extensive review of all of the evidence, including statements from the Veteran, the Veteran's treatment records, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The July 2019 and September 2021 VA examiner reports are consistent with the evidence of record, including the Veteran's statement that his headache condition began in 2013 or 2014. The July 2019 and September 2021 VA examiner reports provide compelling evidence against the Veteran's claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value because he lacks the medical expertise needed to diagnose a headache condition or to attribute it to active military service. There is no competent, credible evidence to refute the VA examiner reports. The weight of the probative evidence of record is against a finding that the Veteran has a diagnosed headache condition that is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted. Finally, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.124a, DC 8100, for entitlement to service connection for migraines and any residuals of migraines. Therefore, his claim must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.