Citation Nr: 21012574 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-64 097 DATE: March 4, 2021 ORDER Entitlement to service connection for headache disability is denied. FINDING OF FACT The probative evidence of record does not show that the Veteran’s pre-existing headache disability was aggravated beyond the natural progression during his active duty service. CONCLUSION OF LAW The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to January 1968. The Veteran originally requested a Board hearing that was scheduled for January 2021, but he subsequently cancelled his hearing request. Therefore, his hearing request is deemed withdrawn, and the Board will proceed with adjudication of his claim. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Further, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2020). In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. Entitlement to Service Connection: Headaches The Veteran contends that his pre-existing headache condition was aggravated by his active duty service. The initial determination is whether a headache condition was present prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the record evidence shows that the Veteran noted frequent or severe headaches in his August 1965 pre-induction examination, and it was noted by the examiner that he suffered a cerebral concussion in 1963 and that he had headaches ever since. The Board concludes, accordingly, that the presumption of soundness at entrance does not attach, and the Veteran entered service with a pre-existing headache condition. In September 2015, the Veteran was provided a VA examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the August 1965 examination noted the Veteran had a history of football injury with concussion and headaches occurring after. The examiner then opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner stated that medical assessment during military service and hospitalization was noted in the Veteran’s service treatment records; however, there are no medical records after military service that would identify a chronic aggravation of the post-concussion headaches. In October 2017, an addendum opinion was obtained. The examiner noted an extensive review of the Veteran’s service records. The examiner then opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner stated that there was no evidence of any specific event, injury, or illness incurred by the Veteran during service that would have possibly altered the course of his headache disorder. The examiner explained that the Veteran had recurrent headaches before service, during service, and since service. VA treatment records and private medical records show complaints and treatment for headaches. However, none of the records relate the Veteran’s condition to his active duty service. In fact, his private medical records show his headaches were consistently noted by his physician as being related to neck pain and being of cervicogenic origin. His private medical records also show that in April 2000 his physician noted that his current frequent headaches had only occurred over the past few years, which is over 25 years after his active duty service. The Board acknowledges a statement from the Veteran’s private physician dated November 2017 that stated that while no one could say with certainty, the Veteran’s history would indicate that his headaches started at a time correlating with his military service and that they persist to today. The physician also noted that the Veteran denied any history of headaches prior to service and instead recalled having been hospitalized for a couple of weeks for headaches while in Vietnam. However, as provided above, the Veteran noted that he suffered from frequent headaches at his August 1965 pre-induction examination. Thus, the record does not indicate his headaches started during his military service. The Veteran’s statements denying a history of headaches prior to service are inconsistent with what he reported at entrance into service and are not credible. Moreover, the physician used the language would indicate and also noted that no one could say with certainty. The Board finds this language is suggestive, especially since the examiner did not address the notation on the Veteran’s pre-induction examination or appear to have reviewed the Veteran’s medical records. Therefore, the Board puts low probative value on the November 2017 opinion, as the opinion was not based on a complete review of the Veteran’s file and was based on an inaccurate premise, and such speculative opinions are not probative, but rather are inconclusive. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (stating that a physician’s statement framed in terms such as “may,” “could,” or “possible” is not probative). Therefore, the Board finds the September 2015 and October 2017 VA opinions to be of significant probative value in determining that the Veteran’s preexisting headache disability was not aggravated by his period of service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physicians’ opinions were based on review of the Veteran’s lay contentions, his reported medical history, and review of the medical evidence of record. Further, complete and thorough rationales were provided for the opinions rendered and are consistent with the evidence of record. The Board acknowledges the Veteran’s assertions that his headache condition was related to or aggravated by service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any headache disability is related to his service, to include as being permanently aggravated by service, requires medical expertise that the Veteran has not demonstrated since headache disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board also notes that the evidence of record does not show headache complaints until 1998, which is over 25 years after his active duty service, and thus weighs against showing that service aggravated his preexisting headache disability. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.