Citation Nr: 21013391 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-40 008 DATE: March 9, 2021 ORDER Entitlement to service connection for a headache disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified trauma and stressor related disorder, major depressive disorder, insomnia, and alcohol use disorder, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current headache disorder began during active service, manifested to a compensable degree within one year of discharge, or is otherwise related to an in-service injury, event, or disease, including as secondary to the Veteran’s service-connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to July 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans (VA) regional office (RO). The Board notes in November 2015 the Veteran requested a decision review officer (DRO) hearing with his local VA regional office. In June 2017 the Veteran failed to appear at this hearing and his request for a DRO hearing was considered withdrawn at that time. Also, in a January 2019 correspondence with the VA, the Veteran requested a hearing with the Board at the Washington, D.C. location. In January 2019, the Veteran withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). In July 2019 and April 2020, the Board, inter alia, remanded the Veteran’s headache disorder claim for further development. The April 2020 Board decision also denied the Veteran’s claim as to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), unspecified trauma and stressor related disorder, major depressive disorder, insomnia, and alcohol use disorder. The Veteran appealed the Board’s April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent order, which incorporated the parties December 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the April 2020 Board decision to the extent that it “denied” the Veteran’s claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), unspecified trauma and stressor related disorder, major depressive disorder, insomnia, and alcohol use disorder. The remaining issues on appeal to the Court were dismissed in the December 2020 order. As the issues listed above are ripe for adjudication, they have been merged with the current appeal stream. The Service Connection Claim Entitlement to service connection for a headache disorder The Veteran contends his headache disorder is from his exposure to intermittent long periods of painting without proper breathing materials during service, or alternatively, proximately caused or aggravated by his service-connected tinnitus. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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). Service connection for certain chronic diseases, including migraine headaches, as other organic diseases of the nervous system, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service (for Hansen’s disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years). 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The term “chronic disease” refers to those diseases listed under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) of the VA regulations. See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where a diagnosis of chronicity may be legitimately questioned (“ i.e., “when the fact of chronicity in service is not adequately supported”), then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence, a VA examiner diagnosed the Veteran with a headache disorder with onset in March 2017. See August 2019 VA Examination Report. Thus, the first element of a claim for service-connection, a current disability, has been met. However, this record provides some evidence against this claim as it indicates that the problem began many years after service. The Veteran’s service treatment records (STR’s) do not contain complaints, treatment, or diagnosis for a headache or migraine condition while in service. The Veteran’s entrance and exit examinations do not contain complaints, treatment, or diagnosis of a headache disorder. Specifically, the Veteran denied having “frequent or severe headaches” in his June 1994 Report of Medical History while separating from service and there are no other records showing the Veteran had complaint, treatment or diagnosis for a headache disorder during his time in service. The Veteran underwent a VA examination in August 2019 where he reported that he developed headaches during service but never sought medical evaluation. He reported that he self-treated with over-the-counter medication since service. Upon examination, the examiner opined his current headache disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event. In support, the examiner noted the claims file was silent for a headache diagnosis during military service. Furthermore, evidence shows a diagnosis for migraines in 2017, which was 23 years after separation from military service. Also, there is no medical evidence to support that the Veteran’s migraine diagnosis is etiologically related to service, to include his exposure to paint without proper breathing materials. The examiner concluded that since the diagnosis was rendered 23 after service, without evidence of an event, injury, or disease suffered in service, a nexus cannot be established. The Board finds this examiner’s opinion to be highly probative as to whether the Veteran’s current headache disorder is etiologically related to his service. The examiner’s opinion was based on a thorough review of the claims file, including service treatment records, the Veteran’s lay statements, an examination of the Veteran, and the opinion is consistent with the other evidence of record. Moreover, the examiner provided an adequate rationale for the opinion as it relates to direct nexus evidence. Accordingly, the VA examiner’s opinion in this case is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran’s lay statement that his migraine headaches began while intermittently working in a paint locker on active duty for long periods of time without proper breathing equipment. See February 2014 statement. However, while the Veteran is competent to report on symptoms of his headaches in service, he is not competent, for evidence purposes, to opine on matters requiring medical knowledge such as determining the nature, etiology, and severity of a medical condition such as a headache and migraine disorder. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds the Veteran’s February 2014 statement is of limited probative value in the claim because the Veteran is not competent to opine on the etiology of his current headache disorder. Also, the Veteran’s statement, made twenty years after leaving service, is contradicted by the evidence of record. See e.g., June 1994 Report of Medical History. The Veteran himself in service indicated he did not have this problem at separation. In this case, the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran’s headache disorder and its etiology. The service treatment records and medical evidence of record, as noted above, contradict the Veteran’s endorsement that his current headache disorder started in service, where it does not show up in the record until over twenty years after discharge. Importantly, there is no medical evidence of record showing a direct connection (or a presumptive link as a chronic condition) between the Veteran’s current headache disorder and his service or a service-connected problem. Simply put, the best medical and lay evidence available shows that the onset of the Veteran’s current headache disorder began many years after leaving service and the record provides highly probative evidence against the claim that the Veteran’s current headache disability is etiologically related to his service. Moreover, the Veteran’s post-service medical records do not reveal a diagnosis within applicable time limits for a presumption and they do not show continuous ongoing medical treatment for a headache disorder after discharge from service. Therefore, Veteran’s headache disorder is not shown to be etiologically related to active service on a direct entitlement basis. Furthermore, there is insufficient evidence to warrant a finding of presumptive service connection for a chronic disease under 38 C.F.R. § 3.309 and § 3.307. And, finally, there is no evidence demonstrating continuity of symptomatology since leaving service, where the first medical evidence of a headache disability appears in 2017, which is over twenty years after discharge from active duty. Thus, the question before the Board in this claim is whether the Veteran’s current headache disability is either proximately caused by, or proximately aggravated by his service-connected disabilities. In this regard, the Veteran currently is service connected for tinnitus. On the issue of proximate cause, after examining the Veteran in person and reviewing the claims file, the August 2019 VA examiner opined that the Veteran’s claimed headache condition is less likely than not (less than 50 percent probability) proximately due to his tinnitus condition. In support, the examiner cited to the Merck Manual to discuss the etiology of migraine headaches generally and then concluded that there is no medical evidence in the Veteran’s claims file to support his migraine diagnosis being proximately caused by his service-connected tinnitus. However, the August 2019 VA examiner did not address the aggravation component of secondary service connection and the opinion was found inadequate and remanded to this extent only. See April 2020 BVA Decision. In July 2020, VA issued an addendum opinion on whether the Veteran’s headaches could be proximately due to or aggravated by his service-connected tinnitus condition. The July 2020 examiner reviewed the claims file and was familiar with the medical history of the Veteran. The examiner opined the Veteran’s headache condition is not at least as likely as not aggravated beyond its natural progression by his service-connected tinnitus condition. In support, the examiner cited a history of complaints of tinnitus from the Veteran without accompanying complaints of headaches, STR’s that are silent for a headache condition, a separation exam with a negative response for having frequent severe headaches at the time of leaving service and a span of over twenty years without complaint, treatment or diagnosis of a headache condition in the medical record. The examiner further reasoned that tinnitus is due to acoustic damage affecting the cochlear system and migraine headaches are a vascular phenomenon and are not caused by tinnitus, which is accepted medical knowledge and supported by standard texts. In terms of their proximate medical connection, the July 2020 examiner opined there is no physiological or anatomical connection between the two conditions, as tinnitus is constant and his headaches are not. The examiner opined, the impact of tinnitus is less likely than not of significant clinical importance with respect to the Veteran’s headaches. Based on a thorough review of the Veteran’s prior medical examinations and medical history, the examiner opined it is less likely than not that the Veteran’s migraine headaches are due to or aggravated beyond the natural course by the Veteran’s tinnitus. In further support of this opinion the examiner reasoned that while it may be that the tinnitus is more noticeable to the Veteran during the course of a headache, this does not establish cause or aggravation. Importantly, the examiner reported there is no evidence of increased frequency, duration or intensity of headaches due to the Veteran’s tinnitus condition. In this case, the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran’s headache condition and its etiology. The August 2019 and April 2020 VA examinations, taken together, provide a competent, credible and highly probative evidence against the Veteran’s claim that his current headache condition is caused by his active service or proximately caused or aggravated by his service-connected tinnitus condition. Importantly, the August 2019 and April 2020 VA examinations were based on a thorough review of the Veteran’s medical history and considered the Veteran’s lay statements. The opinions offered conclusions supported by adequate reasoning with citation to both the evidentiary record and medical journal evidence, and overall provide the Board with sufficient information to weigh the evidence in this claim. Therefore, although the Veteran’s competent reports of symptoms of headaches have been considered, for the reasons outlined above, the Board attaches the greatest amount of probative weight to the clinical findings and opinions in the August 2019 and April 2020 VA examinations as to the etiology of the Veteran’s current headache disorder. Put simply, both reports were filed by skilled, unbiased professionals, who provide competent, credible and probative evidence as to the etiology of the Veteran’s current diagnosis of a headache disorder. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. These findings provide a clear basis for the opinion against the Veteran’s claim. Significantly, there is no competent evidence of record linking the Veteran’s current headache disorder to his service, to include as secondary to his service-connected tinnitus. While the Veteran clearly suffers from a headache disorder currently, he has not established a link between his current disability and his active service, or between his current disability and his service-connected disability of tinnitus. Both the (1) service records; (2) the post-service treatment records; and (3) all medical opinions provide evidence against this claim, any one of which would provide a basis to deny this claim. In conclusion, service connection for a headache disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability As to the claim of service connection for an acquired psychiatric disability, the JMPR, mentioned above, partially vacated and remanded the Board’s April 2020 decision, finding the August 2019 VA examination was not adequate. A matter identified in the JMPR is remanded pursuant to 38 U.S.C. § 7252(a) for action consistent with the terms of the joint motion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Specifically, in this case, the JMPR found that the August 2019 medical opinion was not adequate as to the Veteran’s claim for an acquired psychiatric disability. The JMPR noted the examiner failed to provide an opinion as to the etiology of Veteran’s acquired psychiatric disorder. While the examiner identified several possible causes for the Veteran’s acquired psychiatric disability, including events that occurred during active service, such as the death of the Veteran’s child in 1994, the examiner did not state whether it was as likely as not that a particular incident caused the Veteran’s current acquired psychiatric disability. Given the inadequate opinion provided in the August 2019 VA examination as to the etiology of the Veteran’s acquired psychiatric disorder, the Board finds that a remand to obtain a clarifying medical opinion is required. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit any new pertinent evidence the Board/VA does not have (if any) or any other evidence the Board does not have. 3. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably qualified medical professional to address the diagnosis and etiology of all acquired psychiatric disabilities claimed by the Veteran. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: (a.) Provide diagnoses for all acquired psychiatric disorders. (b.) The examiner should offer comments and an opinion as to the etiology of any currently diagnosed acquired psychiatric disorder. In order to comply with the JMPR, the examiner must offer comments and an opinion as to the etiology of the Veteran’s acquired psychiatric disorder. (c.) The examiner should offer comments and an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed acquired psychiatric disorder was caused by the Veteran’s military service. (d.) Provide an opinion as to whether any currently diagnosed acquired psychiatric disorder developed in the first year after the Veteran left service. The examiner in providing the above opinions should consider and discuss, among other things, the Veteran’s lay claims regarding observable symptomatology in and/or since service. After reviewing the claims file, the examiner’s opinions must be supported by a clear rationale, and a discussion of the relevant facts in the record and lay statements provided by the Veteran, and should state clearly what medical principles are involved in supporting any medical conclusions made in the opinion. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.