Citation Nr: 21008495 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 11-31 307 DATE: February 17, 2021 ORDER Entitlement to service connection for a headache disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s headache disability began during active service and have been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a headache disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1977 until his honorable discharge in August 1980. He had additional active duty service in the United States Army from January to June 1991, to include service in Southwest Asia in support of Operation Desert Shield/Storm. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This matter involves an extensive procedural history that need not be detailed here. However, pertinent to this instant action, an April 2019 Board decision denied service connection for a headache disability. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) contesting the Board’s April 2019 decision. In January 2020 the Court vacated the Board decision and remanded the issue in compliance with a Joint Motion for Partial Remand (JMPR). An August 2020 Board decision remanded the issue to the Agency of Original Jurisdiction (AOJ) in compliance with the JMPR requirements. Subsequently, a Veterans Evaluation Services (VES) headaches examination was conducted in September 2020, and the examiner provided a new opinion on the etiology of the headache disability. A review of the claims file shows there has been substantial compliance with the Board’s August 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for further consideration. Service Connection Under the relevant law 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; 38 C.F.R. § 3.303. 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 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In this case, a headache disability is a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, 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 Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 38 U.S.C. § 1154(a) requires VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against a claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a headache disability is granted. The Veteran contends his current headache disability had its onset during military service, and he has continuously experienced relevant symptoms since that time. In resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection have been met. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a headache disability. See, e.g., November 2008 Washington VAMC records, September 2016 VA examination report, and September 2017 Logistics Health Incorporated (LHI) examination report. The Board noted here, the presence of a chronic disability at any time during the claim process can justify a grant of service connection even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, in the appealed September 2009 rating decision, the AOJ acknowledged the diagnosed disability. Additionally, in the December 2016 Supplemental Statement of the Case (SSOC), the AOJ found the Veteran had satisfied the second element of service connection, as the service treatment records (STRs) reflect complaints of “frequent or severe headaches”. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Given the favorable findings of the AOJ and the evidence contained in the Veteran’s STRs, the current disability and in-service prongs of the claim have been met. Thus, the issue on appeal turns on whether there is a link between the Veteran’s current headache disability and his service. Regarding the assertions he has experienced headache disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Turning to the medical opinions of record regarding the etiology of the Veteran’s headache disability, the Veteran underwent a VA headaches examination in September 2016. The examiner diagnosed tension headaches and provided a negative nexus opinion stating there was no overwhelming evidence suggesting an association between the Veteran’s headache symptoms/condition and an exposure event in Southwest Asia. In a December 2016 addendum opinion, the examiner stated, although the Veteran’s STRs [Standard Form 93] note “frequent or severe headaches”, there is no other specific headache related documentation found on review of the STRs including any ongoing symptoms of headache, diagnosis or treatment of headaches. Pursuant to the July 2017 Board’s remand, the Veteran was afforded an additional LHI examination in September 2017. The examiner diagnosed cluster headaches and provided a negative nexus opinion stating the Veteran’s file did not mention headaches in the 1990’s. The examiner stated the Veteran’s description of headache symptoms are classic symptoms of cluster headaches, which are associated with alcohol consumption. The parties to the January 2020 JMPR agreed the September 2016 examination, December 2016 addendum opinion, and September 2017 examination were inadequate. Specifically, the September 2016 examination only addresses whether the Veteran suffered from headaches as a result of an exposure or event in Southwest Asia. Additionally, the December 2016 examiner addressed the Standard Form 93 report of “frequent or severe headaches” but failed to explain how this evidence led the examiner to the conclusion the Veteran’s headaches were less likely than not incurred in or caused by in-service injury, event, or illness. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the parties noted, the Board’s favorable finding that “the evidence shows in-service incurrence of headaches. The Veteran has consistently reported experiencing headaches since being deployed to the Persian Gulf.” See April 2019 Board Decision. However, the September 2017 examiner opined the Veteran’s headaches were less likely than not related to service. The examiner did not address the Standard Form 93 and failed to reconcile the Veteran’s in-service incurrence of headaches with his findings. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Thus, the claim was remanded back to the Board to obtain an adequate opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Upon readjudication, the Board, in an August 2020 decision, remanded the claim for examination with medical opinion. Pursuant to the August 2020 remand order, a VES headaches examination was conducted in September 2020. The Veteran reported a history of headaches but was unable to provide a specific date of onset. The examiner provided a negative nexus opinion, finding there was no objective evidence of headaches on examination. In offering this opinion, the examiner stated the history rendered by the Veteran is not suggestive of headaches, especially the transient nature of it and inconsistency to occurrence. The examiner stated the subjective symptoms reported could be muscle spasm induced or vascular in origin or possible aneurysm; however, this has not been confirmed. The examiner concluded the history was not consistent with tension headaches as there is no history of “band-like” pain. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Upon review, and resolving any reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s headache disability is related to his active service. See 38 C.F.R. § 3.102. As noted, the September 2016 examination, December 2016 addendum opinion, and September 2017 examination were found inadequate by the Court. Additionally, although the September 2020 examiner found the Veteran does not have a currently diagnosed headache disability, the Board finds this examination to be of diminished probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the September 2020 examiner’s opinion is problematic because the examiner did not address the Veteran’s competent report of relevant symptoms or the fact that the Veteran reported experiencing these symptoms continuously since service. Second, the Board finds the opinion did not reflect that the “current disability” requirement for service connection is satisfied if a claimant has a disability at any time during the pendency of a claim, even if the disability resolves prior to the adjudication of the claim. McClain, 21 Vet. App. at 321. As noted by the AOJ, the Veteran had been diagnosed with a headache disability. Thus, as the opinion is not adequate, it does not assist the Board in resolving this claim and cannot serve as the basis of a denial of this issue. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s statements that he experienced a headache disability following his deployment to the Persian Gulf during Desert Storm and he continued to experience headache disability symptoms since service separation. Although there is no medical nexus opinion of record linking the Veteran’s headache disability to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his headache disability and finds that he has done so. While there is no evidence in the record that he sought medical treatment for a headache disability for almost eight years after service separation, this fact alone is not determinative of the outcome of the case. While the Veteran is not competent to report the etiology of his condition, his statements are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. at 469-70. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. The Board notes symptoms of a headache disability are capable of lay observation. The Veteran has been consistent in his description of the details regarding the onset and symptomatology of his headache disability. The Veteran has continuously asserted he has experience headache disability symptoms since military service including chronic pain. This supporting evidence places the pertinent record at least relative equipoise. Accordingly, in view of the totality of the evidence, current findings of a headache disability, in-service incurrence of headaches, and competent and credible assertions of a continuing headache disability since service separation, the Board finds the evidence of record is at least in relative equipoise. When the evidence is in relative equipoise, the benefit-of-the-doubt doctrine provides such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, service connection for the Veteran’s headache disability is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.