Citation Nr: 21006428 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-15 159 DATE: February 4, 2021 ORDER Entitlement to service connection for a headache disability, to include as secondary to a lumbar spine disability, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s headaches are secondary to his service-connected lumbar spine disability, and are otherwise related to an in-service injury or disease, and did not manifest within a year of service. CONCLUSION OF LAW The criteria for service connection for headaches due to service or service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to November 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This matter was previously before the Board in December 2016, when it was remanded for further development, as well as in August 2019 for an addendum opinion regarding secondary service connection. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). REFERRED The issue of entitlement to service connection for a cervical spine disability was raised in a November 2020 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Under the relevant laws and regulations, 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, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a headache disability, to include as secondary to a lumbar spine disability The Veteran contends that his headaches are caused or aggravated by his spine disability. Alternatively, he contends his headaches are related to service. The Board will first address secondary service connection. Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Where, as here, service connection is not in effect for a cervical spine disability, secondary service connection is precluded as a matter of law. See 38 C.F.R. § 3.310 (a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service connected); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Headaches are a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. §§ 3.303 (b) and 3.309(a) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board acknowledges the argument submitted by the Veteran’s representative in a November 2020 brief, averring that the claim of entitlement to service connection for a cervical spine disability should have been inferred and developed by VA as having been raised by the record. A specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101 (a) (2014); 38 C.F.R. § 3.151 (a) (2019). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2019); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran’s representative cites Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) as mandating a duty to develop “all potential claims raised by the evidence”. However, the Roberson case considers increased rating claims and more specific to that case, a TDIU. The Board has referred the claim herein for consideration pursuant to the representative’s statement of November 2020. However, the Board declines to remand as requested an issue which has not been adjudicated by the AOJ and over which the Board does not have jurisdiction. As to service connection for headaches as secondary to a lumbar spine disability, the Board first acknowledges that the Veteran has a current headache disability, and is service-connected for a lumbar spine disability. Specifically, the Veteran is diagnosed with tension headaches. See November 2019 VA examination. As such, the only remaining question is that of a nexus between the Veteran’s tension headaches and lumbar spine disability. The Board concludes that, while the Veteran has a current tension headache disability, the preponderance of the evidence is against finding that the Veteran’s headaches are proximately due to or the result of, or aggravated beyond its natural progression by his lumbar spine disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran was afforded a VA examination in June 2012 to assess the nature and etiology of his headache disability. The examiner opined that the Veteran’s tension headaches appear to be related to cervical degenerative changes consistent with primary care findings. The examiner reasoned that the Veteran has had very physically active work throughout his life, and that cervical changes are presumably secondary to cumulative trauma from work as well as genetics. The November 2019 VA examiner also opined that the Veteran’s headaches are more likely related to the Veteran’s cervical spine disability. The rationale was that there is no link between tension headaches and lumbar spine issues, and rather, cervical spine muscles issues and degenerative changes noted on the Veteran’s May 2011 CT scan can cause tension headaches. The August 2020 VA examiner also related the Veteran’s headache disability to his cervical spine disability. It was opined that the Veteran’s headaches are less likely than not aggravated by the service-connected lumbar spine disability. The examiner reasoned that tension headaches develop in the neck and cervical spine musculature. Further, the examiner cited Mayo Clinic research in support of his opinion. The Board affords the 2019 and 2020 VA opinions great probative weight, as they are based on a thorough review of the Veteran’s claims file, and contain etiological opinions supported by an adequate rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran’s lay statements of record. However, in this case he is not competent to provide a nexus opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, anatomical relationships, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record, including the 2019 and 2020 VA examination results. Though service connection on a secondary basis is unavailable, the Board will address entitlement to service connection on a direct basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a current headache disability, the preponderance of the evidence weighs against finding that the Veteran’s headaches began during service or are otherwise related to an in-service injury, event, or disease or manifested within a year of service. Review of the Veteran’s service treatment records reflects a single report of frontal tension headache in May 1972. The Board notes that the Veteran’s separation clinical examination of November 1974 notes no head or spine abnormalities, and in the associated report of medical history, the Veteran specifically denied having frequent or severe headaches. Private treatment records show the Veteran was not diagnosed with headaches until September 2002, 28 years after separation from service. While the Veteran is competent to report having experienced symptoms of headaches intermittently since service, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Taken together, the several VA opinions of record, including in June 2012, November 2019 and August 2020 establish that the Veteran’s tension headaches are not at least as likely as not related to an in-service injury, event, or disease. The June 2012 VA examiner opined that the Veteran’s tension headaches are not at least as likely as not related to service. It was reasoned that while the Veteran reported unremitting headaches since the time of his service, the record does not substantiate such a statement. The examiner noted that while there was one notation of a headache in 1972, the separation examination was silent as to headaches. Additionally, the examiner noted that the Veteran’s medical record is indicative that the Veteran’s headaches started in his 20’s, which is at the earliest about the time of his discharge. Further, the examiner indicated that medical records include the Veteran’s reports of headaches increasing in severity and frequency progressively, which is in contrast to the Veteran’s current reports of headaches which were always severe. Finally, as previously noted, the examiner attributed the headaches to the Veteran’s cervical spine disability, as did the November 2019 and August 2020 VA examiners, rather than service. The examiners’ combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds that while the Veteran is competent to report chronicity of symptoms, the objective medical record conflicts with the Veteran’s statements. If he had been experiencing chronic or continuous symptoms since service (as he now alleges), it stands to reason that he would have mentioned this and also possibly have reported and sought medical care for said headaches throughout the appellate period – rather than first reporting headaches in September 2002 treatment records, over 28 years after separation from service. Based on this collective body of evidence, the Board finds that any statements as to continuity of symptoms referable to headaches since service are not credible based on the record, as a whole, including no mention of this for several decades following service and the Veteran’s inconsistent assertions of just how long he has experienced headaches; on one occasion claiming since service, on another occasion since 10 days prior to a medical visit in September 2002 for cervical injury, and in a May 2011 treatment note that he has had headaches since his 20’s. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran’s testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) The Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on his headache disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the etiology of headaches. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, there are many treatment records associated with the claims file but no records indicating that the Veteran had headaches prior to 2002. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a headache disability causally related to, or aggravated by, his service, to include a period of reserve service, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Consequently, the Board gives more probative weight to the VA examiners’ opinions of record. In light of the above analysis, the weight of the evidence does not establish a nexus between the Veteran’s current tension headaches and service or his service-connected lumbar spine disability. Rather, the probative medical evidence of record is indicative that the headaches are attributable to his cervical spine disability, which is not service-connected. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Therefore, the appeal must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.