Citation Nr: 21013560 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-16 071 DATE: March 9, 2021 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for a seizure disability is denied. Entitlement to service connection for a spot on the brain is denied. Entitlement to service connection for a right eye disability is denied. Entitlement to service connection for blurred vision and spots is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the probative evidence of record shows that the Veteran has continuously had symptoms of migraine headaches since service. 2. The preponderance of the evidence is against finding that the Veteran has had a seizure disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against a finding that the Veteran has had a disability manifested by a spot on the brain at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence is against finding that a right eye disability began during active service or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that blurred vision and spots began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a seizure disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a spot on the brain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for blurred vision and spots have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Portland, Oregon, which in pertinent part denied entitlement to service connection for a right eye disability and a spot on the right side of the brain, and declined to reopen service connection claims for blurred vision and spots, epilepsy, and migraines. The Veteran timely appealed. In May 2018, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript is of record. The Board issued a decision in June 2018 in which it reopened the Veteran’s service connection claims for blurred vision and spots, epilepsy, and migraines. The Board then remanded those claims and the service connection claims for a right eye disability and for a spot on the right side of the brain for additional development. As the required development has been substantially completed, the Board may proceed to adjudicate the claims on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will 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, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain diseases, such as migraines (as an organic disease of the nervous system) and epilepsies are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113;38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) 1. Entitlement to service connection for migraine headaches is granted. The Veteran maintains entitlement to service connection for migraine headaches. The Veteran has shown evidence of a current disability for his claim for migraine headaches, to include VA examination reports and VA treatment records which have variously diagnosed him with migraines and holocephalic headaches. With respect to the presence of an in-service event, injury, or disease, the Veteran avers that he was hit with a rock, fell, knocked his head against a van, and was rendered unconscious. The Veteran is competent to report in-service experiences. Moreover, the Board finds that the account is credible. Although the Veteran’s service treatment records do not specifically describe this incident, they show that the Veteran’s glasses were broken in October 1966, he had to have stitches, and a traumatic scar on his scalp was documented on his separation examination. These facts support the Veteran’s assertions of a head injury during service. Accordingly, the Board finds that an in-service event, injury, or disease, is met with respect to the Veteran’s claim. The Board will next address whether the evidence shows a nexus, or connection, between the Veteran’s claimed disability and active service. The Veteran has consistently and continuously asserted throughout the claims period that his headaches had onset during service and have progressed continuously since that time. He made this assertion at his May 1994 and July 2019 VA examinations, as well as when testifying before the undersigned Veterans Law Judge at his hearing in May 2018. Specifically, both examination reports note the Veteran’s averments that headaches began during his active duty service after being hit in the head with a rock and have continued since that time, and the hearing transcript contains his testimony that headaches and light sensitivity were immediately noticeable following that incident. The Board finds that the Veteran, as lay person, is competent to speak to manifestations or symptoms of migraines or headaches. He is competent to express those observable symptoms of his disability, here migraine headaches, as he has on many occasions to VA and private examiners throughout the claims period. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Here, the Board finds that headaches, or migraines, are of the type of medical condition in which a normal lay person can competently attest to. Therefore, as the Board finds that the Veteran’s both competent and credible to speak to the continuity of his symptoms since active service, the Board finds that the Veteran’s claim must be granted on a presumptive basis, based on continuity of symptomatology. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges the sparse number of contemporaneous treatment or medical records immediately after the Veteran left service for the claimed disability. However, again, the Board finds that the Veteran to be competent to speak to the fact that his headaches arose during service and those symptoms he experienced, and the fact that they continued after service. Merely the lack of contemporaneous medical evidence after service for such condition is not a bar for warranting service connection on this basis. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Furthermore, the Board finds that unlike other disabilities, headaches are of the type of disability which may not cause a person to seek a medical professional, and therefore, a lack of continuous treatment is not fatal to the Veteran’s credibility. The Veteran is competent to state a continuity of symptomatology of headaches, which were later diagnosed as migraine headaches. Further, the Board acknowledges the presence of the negative nexus opinion provided in July 2019. The examiner noted that there was no evidence of service connection, as the Veteran’s service medical records showed no evidence of treatment or diagnosis of such a condition. The examiner failed to consider the Veteran’s competent lay testimony regarding continuous headache pain symptoms both in and since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Thus, this medical opinion is of low probative value. At this point, the Board could remand the claim for yet another VA examination or opinion. However, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). The Board finds that the current evidence is sufficient to decide the Veteran’s claim. Given the current diagnosis of migraine headaches, the Veteran’s in-service incident, and his competent, credible testimony regarding continuity of symptomatology since that time, the Board resolves all reasonable doubt in favor of the Veteran. Accordingly, service connection for migraine headaches is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a seizure disability is denied. The Veteran maintains entitlement to service connection for a seizure disability. The Board finds that the Veteran does not have a current diagnosis of a seizure disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the Veteran underwent a VA examination in July 2019, and, following a review of the claims file, and an interview and clinical evaluation of the Veteran, the examiner determined that, while the Veteran had tonic-clonic or grand mal seizure and psychomotor epilepsy decades prior, a current seizure disability was not present. Moreover, at that examination and in VA treatment records through July 2020, the Veteran has reported that he has not had a seizure since 1985, over thirty years ago. Thus, there is no competent, credible evidence reflecting a seizure disability at any time during the pendency of the claim or recent to April 2013, the date the claim on appeal was filed. To the extent the Veteran believes he has a currently diagnosed seizure disability, he has not shown the requisite medical knowledge or expertise to provide such a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no current disability to be present or at any time during or approximate to the pendency of the claim. See Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no evidence showing that the Veteran suffers from a current seizure disability. Should seizure disability pathology reappear in the future, a new claim could be filed at that time. As it stands, the threshold element of service connection, that there be a current disability, has not been met, and service connection for a seizure disability is not warranted. 3. Entitlement to service connection for a spot on the brain is denied. The Veteran maintains entitlement to service connection for a spot on the brain. Concerning a current disability, the Board notes that the Veteran underwent a magnetic resonance imaging (MRI) of the head in September 2012 where an area of hemosiderin staining in the right parieto-occipital lobe was seen. The Board has reviewed the Veteran’s post-service treatment records and the lay statements of record, as well as the findings of the VA examiner at the July 2019 VA examination which were proffered following a review of the claims file and an interview and clinical evaluation of the Veteran. Significantly, none of these show any competent evidence of a disability due to the findings of hemosiderin staining in the right parieto-occipital lobe. Specifically, the July 2019 examiner observed that there was no evidence that the Veteran’s condition was symptomatic; thus, he was unable to render a diagnosis due to no definitive pathology. Implicit in the claim is the Veteran’s belief that he has a disability due to findings of an area of hemosiderin staining in the right parieto-occipital lobe. He, however, has not established his competence to establish the existence of such a disability. The question of whether the Veteran has the claimed disability is beyond the realm of a layman’s competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no evidence showing that the Veteran suffers from a current disability (functional impairment) due to the area of hemosiderin staining in the right parieto-occipital lobe at the time of filing of the claim or at any time during this appeal. Should pathology related to a spot on the brain appear in the future, a new claim could be filed at that time. As it stands, the threshold element of service connection, that there be a current disability, has not been met, and service connection for a spot on the brain not warranted. 4. Entitlement to service connection for a right eye disability is denied. 5. Entitlement to service connection for blurred vision and spots is denied. The Veteran maintains entitlement to service connection for a right eye disability and for blurred vision and spots. As analyzing these issues entails application of identical laws to similar facts, the Board will discuss them together. The Veteran has shown evidence of a current disability for his right eye disability and blurred vision and spots, to include VA examination reports and VA treatment records which have variously diagnosed him with meibomian gland dysfunction, dry eye syndrome (with related conjunctivochalasis), posterior vitreous detachment (PVD) of the right eye, and posterior chamber intraocular lens (PCIOL) of the right eye, and cataract of the left eye. With respect to the occurrence of an in-service event, injury, or disease, the Veteran avers that he was hit with a rock, fell, knocked his head against a van, and was rendered unconscious. The Veteran is competent to report in-service experiences. Moreover, the Board finds that the account is credible. Although the Veteran’s service treatment records do not specifically describe this incident, they show that the Veteran’s glasses were broken in October 1966, he had to have stitches, and a traumatic scar on his scalp was documented on his separation examination. These facts support the Veteran’s assertions of a head injury during service. Accordingly, the Board finds that an in-service event, injury, or disease, is met with respect to the Veteran’s claim. The Board will next address whether the evidence shows a nexus, or connection, between the Veteran’s claimed disability and active service. Relevant to the question of nexus are the findings in the Veteran’s service treatment records. On the Veteran’s May 1965 enlistment examination, his eyes were assessed as normal. Visual acuity was documented, recording his vision at 20/400 bilaterally, corrected to 20/20 bilaterally. Service treatment records reveal that the Veteran was seen in October 1966 when his glasses were broken, and glass had to be removed from his left eye. He was diagnosed with a conjunctival infection of the left eye. Subsequent records are silent for complaint, treatment, or diagnosis of eye problems related to the October 1966 incident; the conjunctival infection appears to have resolved. Subsequent records reflect routine eye examinations, where simple myopia was diagnosed, and prescriptions for glasses provided. At separation, the Veteran’s eyes were again assessed as normal. Visual acuity was documented, at 20/400 bilaterally, corrected to 20/20 bilaterally; bilateral myopia, corrected, was noted as the Veteran’s only visual defect. Upon review of the record, the Board finds that service connection is not warranted for a right eye disability or for blurred vision and spots. As an initial matter, the Board observes that congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia and presbyopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive error unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Here, there is no indication that any diagnosed refractive error has been caused by any specific event such as an in-service injury or exposure, nor is there evidence of a superimposed disability on a refractive error. Accordingly, service connection is not warranted on that basis. Moreover, the preponderance of the evidence weighs against finding that the Veteran’s remaining eye disabilities are related to service. In November 2019, a VA examiner reviewed the claims file, interviewed the Veteran, and provided a clinical evaluation prior to determining that his current eye disabilities (meibomian gland dysfunction, dry eye syndrome (with related conjunctivochalasis), PVD of the right eye, and PCIOL of the right eye, and cataract of the left eye) were less likely than not incurred in or caused by his active duty service. She reasoned that, while the Veteran’s medical records contained a positive history for abnormal eye examinations, they were due to refractive error and to conjunctivitis that resolved while in service. Those events (refractive error and conjunctivitis) were not known to cause cataracts, dry eye syndrome, PVD, or meibomian gland dysfunction, the Veteran’s current eye disabilities. Further, she noted that there was no record of a serious eye injury in service other than the described health problems. Thus, she concluded that it was less likely than not that the Veteran’s current eye disability was due to service. This medical opinion is based on an accurate summary of the medical facts, contains reasoning connecting the available facts to the conclusion, and is otherwise convincing. The opinion warrants significant probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contradictory opinion of record from any medical provider. The Veteran’s lay statements indicating that he experienced difficulties with his vision in service and thereafter are credible. In this regard, the lay statements are not contradicted by anything in the record and were made to a health care provider. Fed. R. Evid. 803 (4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)). However, continuous symptoms such as difficulties with vision (blurring, wavy lines) are not enough by themselves to show that the Veteran’s current eye disabilities are related to service. To the extent the Veteran asserts that his eye disabilities are related to the incident in service when he was hit in the head, the Veteran is not competent to make such a determination. In this respect, the question of whether the Veteran’s current eye disabilities are due to that in-service incident is a complex medical question involving an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, the Board finds that the Veteran’s lay statements are of lower probative value than the November 2019 medical opinion provided by a medical professional with the requisite education, expertise, and training necessary to opine regarding the complex medical question at issue. In sum, there is no competent, probative evidence that any current eye disability is related to service. For the foregoing reasons, the preponderance of the evidence is against a finding that any eye disability had its onset in service, that there is disability superimposed on refractive error that is related to service, or that any other eye disability is the result of the aforementioned in-service incident or is otherwise related to service. The benefit of the doubt doctrine is therefore not for application and service connection for a right eye disability and blurred vision and spots is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.