Citation Nr: 21011337 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 10-29 482 DATE: March 1, 2021 ORDER Service connection for a headache disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a headache disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to October 1977. He had additional subsequent service with the Army National Guard and as a reserve of the Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran had a hearing before a Veterans Law Judge (VLJ) of the Board of Veterans’ Appeals (Board). The VLJ who presided over the July 2011 hearing has since left the Board. In May 2017, the Board offered the Veteran an opportunity to testify at another hearing before a different VLJ. The Veteran was notified that if he failed to respond within 30 days of the correspondence it would be assumed that he did not want another hearing. He did not respond at that time. In October 2020, the Board sent him a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, this letter was erroneous, as the Veteran does not have a pending hearing request. To date, the Veteran has not requested another hearing, despite being advised the VLJ who held his hearing in 2011 is not available to decide his appeal. Therefore, the Board assumes that he does not wish to present for another Board hearing and will adjudicate his case. The transcript from the Veteran’s July 2011 hearing is of record. The Board remanded the appeal for further development in January 2013 and January 2016. In August 2017, the Board denied service connection for headaches. The Veteran appealed to the Court of Appeals for Veteran’s Claims (CAVC). In November 2018, the CAVC granted a Joint Motion for Partial Remand (JMPR), which vacated, in part, the August 2017 Board decision and remanded the matter to the Board for action consistent with the JMPR. In August 2019 and October 2020, the Board remanded the appeal for further development. There have been substantial compliance Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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). Entitlement to service connection for a headache disability The Veteran contends that his headache disability began during his period of service in the Army between October 1974 and October 1977 and have continued since that time to the present. Specifically, the Veteran stated that his headaches either began during basic training in 1974 or between 1975 and 1977, during his first period of active service. See July 2011 Board hearing transcript and May 2013 VA examination. 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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). Certain chronic diseases, including headache disability, an organic disease of the nervous system, are subject to presumptive service connection if manifest 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection based on continuity of symptomatology can be established for the chronic diseases specified under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is competent evidence that the Veteran has a current headache disability, namely generalized headache disability. Therefore, the first element of service connection, a current disability, has been met. See November 2019 VA examination for headaches. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s headache disability manifested to a compensable degree within one year from separation from service, that continuity of symptomatology is established, or that his headache disability is otherwise related to an in-service injury, event, or disease. The Veteran’s STRs for his documented period of active duty between October 1974 and October 1977, contain one notation related to headaches. On December 3, 1976, the Veteran reported to the infirmary complaining of a sore throat and chills. The clinician then used symbols intermixed with words to describe the Veteran’s symptoms. He used symbols to state that the Veteran was “with” a sore throat, then after using the medical symbol for “[z]ero” or “none” listed “earache, Has, cough or N,V&D”. The clinician then observed that the Veteran’s throat had enlarged tonsils with exudates and his neck was supple without cervical lymphadenopathy. He noted that the tympanic membranes of the Veteran’s ears were clean or clear. He assessed the Veteran with tonsillitis and prescribed penicillin and saline gargles. The Board interprets “Has” as being an abbreviation for headaches. Although it appears that the Veteran did not have a headache on December 3, 1976, as he did not complain of having a headache, and “Has” was listed after the symbol for “none”, the Board affords the Veteran the benefit of the doubt on the matter and finds that such is a finding of headaches. The Board also bases this finding on the November 2020 VA medical opinion that the Veteran’s service treatment records noted a single instance of headaches on December 3, 1976. However, such headache 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 that headaches are not listed in the computerized problem lists in any of his VA treatment records. The Veteran’s National Guard records show many periodic examinations where the Veteran denied having headaches. The Veteran’s VA treatment records which appear to begin in December 1996, show only occasional reports of headaches that are related to either alcohol withdrawal, a car accident, a fall, or to his November 2018 surgery to relieve pressure behind his eyes. The first formal diagnosis of a headache disability was at the Veteran’s May 2013 VA examination, when the examiner diagnosed headaches of a non-prostrating type. The May 2013 VA examiner found that the Veteran had a diagnosis of non-prostrating type headaches, and opined that the Veteran’s headache disability is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that the examiner carefully reviewed the Veteran’s completely file and his STRs and VA treatment records are negative for headache treatment. The November 2019 VA examiner found that the Veteran had a diagnosis of generalized headaches and opined that the Veteran’s headache disability is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that the examiner reviewed the Veteran’s complete file, and his STRs are completely silent for headaches and his VA treatment records do not document a continuous, ongoing chronic headache condition proximately subsequent to military service (6-24 months thereafter) and henceforth until the present, thus failing to substantiate the Veteran’s claims regarding his headache condition. In a November 2020 addendum opinion, the examiner stated that while the Veteran’s STRs note a single instance of headaches on December 3, 1976, these headaches were indicative not of a chronic headache condition but were instead part of a constellation of multiple symptoms, including sore throat, earache, cough, diminished appetite, which are typically associated with tonsillitis, an acute, self-limited illness, and further, that the records include at least 3 subsequent periodic retention physical examinations for the National Guard in December 1983, December 1987 and August 1991, when the Veteran repeatedly denied having headaches, and moreover the records are completely silent for ongoing, persistent, and recurrent headache condition and there are no medical treatment records documenting a continuous, ongoing, chronic headache condition proximately subsequent to (6-24 months thereafter) and henceforth until the present, thus the Veteran’s claim of headaches within a presumptive period and continuity of symptomatology are unsubstantiated. While the Veteran is competent to report experiencing symptoms of headaches in service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are inconsistent with the records from his National Guard service, as noted by the November 2019 VA examiner, showing that he repeatedly and consistently denied experiencing headaches during his National Guard service, which began immediately following discharge from the Army in 1977. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to the competent medical evidence, which establishes that any in-service headache symptoms were instead attributable to a bout of self-limited in-service tonsillitis. Further, VA treatment records attribute the symptoms of headache to a variety of other causes, including alcohol withdrawal, car accident, a fall and surgery to relieve pressure behind his eyes. While the Veteran believes his headache disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2013 and November 2019 VA examinations and the November 2020 VA examination addendum opinion. (Continued on the next page)   Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a headache disability. As the preponderance of the evidence is against the claim for service connection for a headache disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.