Citation Nr: 21013831 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-24 151 DATE: March 10, 2021 ORDER Service connection for frontal headaches is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since December 9, 2009, is remanded. FINDING OF FACT There is no probative medical evidence that indicates the Veteran’s current frontal headache disorder is secondary to a service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for frontal headaches have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1994 to January 1996. The case was remanded in August 2020 for an addendum medical opinion. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. 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 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for frontal headaches The Veteran contends her current frontal headaches are secondary to her service-connected disabilities, to include prescription treatment medications for her depression. The Board notes that service treatment records do not indicate any complaints, diagnoses or treatments for headaches in service. During a May 2007 psychological consultation the Veteran complained of headaches as due to noise and fatigue. June 2008 VA treatment records indicate the Veteran complained of chronic headaches. She was assessed with recurrent depressive episodes. The examiner noted that her depression medication Effexor may be contributing to her headaches. October 2008 VA treatment records indicate the Veteran complained of recurrent headaches when taking Abilify, an anti-psychotic medication. In May 2009 an examiner noted the Veteran’s job as a debt collection representative may have caused an increase in her anxiety, depression and headache episodes. At an April 2010 VA medical examination, the Veteran reported the onset of frontal, dull, throbbing headaches for the last several years and that she believed it was due to her service-connected depression. She indicated her headaches were constant, not prostrating, and that she worked at her job during headache episodes. The examiner opined the Veteran’s headache disorder was not caused by her service-connected ovarian cyst disability or by her claimed conditions of irregular menses or fibroids because the Veteran did not demonstrate a current ovarian cyst or irregular menses condition at the time of the examination, and that medical literature did not support the contention that uterinus fibroids caused headaches. The examiner did not opine on the Veteran’s contention that her headaches were related to her depression. In a June 2010 Certificate of Health Care Provider for Employee’s Serious Health Condition, an unnamed physician noted that the Veteran’s migraine headaches, among other claimed conditions, were incapacitating. In July 2018 a VA rheumatologist opined the Veteran’s constellation of symptoms of chronic durable bowel syndrome, headaches, joint pain and chronic fatigue met the criteria for central hypersensitization syndrome. At an August 2019 VA medical examination, the examiner noted the Veteran’s December 2008 migraines diagnosis. The Veteran reported the onset of headaches during service with worsening frequency and severity since then. The examiner opined the Veteran’s headache disorder was less likely than not caused or aggravated by any service-connected disorders, to include ovarian cysts and psychiatric disorders, because the objective evidence did not indicate the Veteran’s headaches were caused or aggravated by her service-connected disabilities. This opinion is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion). The examiner provided no fact-based rationale for his conclusions. In a September 2020 addendum opinion, an examiner reviewed the Veteran’s claims file and evaluated the Veteran’s contention that her headaches were secondary to her psychiatric medications. The examiner opined the Veteran’s headaches were not secondary to her service-connected disabilities, to include the medications prescribed for her psychiatric disability, because the Veteran’s headaches had since been linked to her central hypersensitization syndrome, which is not a service-connected psychiatric diagnosis. The examiner reviewed the Veteran’s psychiatric notes from 2008 that suggested a possible connection between the Veteran’s headaches and her psychiatric disability but the examiner noted that the Veteran’s headache existed prior to and after taking her psychiatric medications Effexor and Abilify and that there the prescriptions were not likely the culprit of the Veteran’s headache disorder. The preponderance of the evidence is against finding service connection for a frontal headache disorder. There is no probative medical evidence that indicates the Veteran’s current frontal headache disorder is secondary to a service-connected disability. The Veteran has continuously asserted throughout the appeal that her current headache disorder is secondary to her depression, to include prescription treatment medication. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of her current frontal headache disorder disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Headaches require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between her current frontal headache diagnosis and its relationship to her depression. In addition, the record contains inconsistent statements regarding the onset of symptoms and the diagnosis and treatment of the disease that minimize the probative weight of the Veteran’s observations of symptoms. Caluza v. Brown, 7 Vet. App. 498 (1995) (holding the Board has a duty to ascertain the credibility of testimony put before it and may consider self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of witness when weighing credibility.). The Veteran reported at her initial claim that her headache disorder was secondary to her claimed depression, which has since been service-connected. However, at the August 2019 VA medical examination she reported the onset of headaches during service. There are no records that indicate the Veteran complained of headaches prior to 2007, that the Veteran reported the onset of her headaches during service until this examination, and STRs do not indicate any complaints of a headache. As such, the Veteran’s one statement that her headaches began in service was not sufficient to warrant additional development for a medical opinion. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the Veteran’s headache disorder is not secondary to a service-connected disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The issue of entitlement to TDIU since December 9, 2009, is remanded. The matters are REMANDED for the following action: 1. This is a remand under Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO failed to obtain sufficient information to adjudicate the appeal. In a December 2019 Form VA 21-8940 TDIU application the Veteran indicated she last worked in 2017. However, at the November 2019 VA medical examination, the Veteran reported she stopped working in January 2018, and May 2020 VA treatment records indicate the Veteran reported working from home. The Board requires complete and verified information regarding the Veteran’s work history during the appellate period in order to fully adjudicate her TDIU claim. 2. Request the Veteran submit detailed information about her work history during the entire appellate period, including dates worked, salary received, and days missed due to her service-connected disabilities. If after a reasonable time the Veteran does not respond or the employers are unable to provide detailed information, so annotate the file. 3. Following the review and any additional development deemed necessary, readjudicate the TDIU claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. (Continued on the next page)   The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.