Citation Nr: 21014321 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-38 584 DATE: March 11, 2021 ORDER Service connection for headaches, on a direct basis only, is denied. REMANDED Service connection for headaches only as secondary to service-connected major depressive disorder with sleep impairment and/or left and right feet disabilities is remanded. FINDING OF FACT The Veteran’s headaches are not related to active duty. CONCLUSION OF LAW The criteria for direct service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1970 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was most previously before the Board in December 2018. The Veteran testified at an October 2013 Travel Board hearing before the undersigned. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2013. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2020). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2020); Allen v. Brown, 7 Vet. App. 439 (1995). Analysis At the October 2013 Board hearing the Veteran indicated that he had headaches that were related to the general stress of military life. He reported headaches during service that have intermittently continued over the years. The Veteran also asserts that his headaches are related to his service-connected disabilities, especially his depression with sleep impairment. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Headaches are diagnosed in VA and private treatment records. Accordingly, the first element of service connection is met. Second, the Board finds that there was not an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s service treatment records are silent for any headache complaints or diagnoses. The discharge examination noted a normal head and neurologic system. The Veteran has stated that he had headaches during service but did not report them. The Board finds these statements are competent and credible, as they are capable of lay observation and are not contradicted by evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Third, the Board finds that the evidence of record does not support a finding that the headaches are related to active service. First, the Veteran’s testimony of headaches since service discharge are competent but not credible, as he has provided inconsistent testimony regarding onset at various points, to include, during service, in the 1980s, and in 2010. See Caluza, 7 Vet. App. at 511. Second, treatment records do not indicate complaints of headaches since discharge. In September 1997 VA records, the Veteran reported slowly worsening headaches. In a May 2008 VA record, the Veteran reported headaches of the last three months. Headaches were also noted in 2010 and 2014 VA records. Private medical records indicated that the Veteran’s headaches were diagnosed in 2016. Thus, the first complaints of headaches were over 20 years after discharge. This gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Third, the medical opinions of record indicate that headaches are not related to active duty. A July 2016 VA examination and opinion was provided. The examiner provided a negative nexus opinion, noting that there was no mention in the records prior to 1994 and the Veteran reported his headaches began in the 1980s and 1990s. The examiner noted this was 20 years after service. A November 2020 VA examination and opinion was provided. The examiner opined that the headaches are not related to active duty, noting that the headaches began in 2010 and that the file did not reflect a history of headaches. The Board assigns these opinions significant probative value as they were provided upon a review of the claims file and supporting explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that review of the claims file by a VA examiner, without more, does not automatically render the opinion persuasive, and conversely a private medical opinion may not be discounted solely for a lack of claims file review, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). There are no contravening medical opinions. The Veteran’s assertion that his headaches are related to service has been considered. The Board, however, finds that this opinion is not competent. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of neurological disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 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”); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Accordingly, to the extent these lay statements addressed the nexus element, the Board finds that they are not competent and are also outweighed by the opinions from the VA examiners. Accordingly, direct service connection is denied. REASONS FOR REMAND 1. Secondary service connection for headaches is remanded. Remand is required to obtain an adequate VA opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As noted above, 2016 and 2020 VA opinions were obtained. Neither examiner provided an adequate supporting explanation. For example, the 2020 VA examiner opined that the evidence did not reflect that headaches were caused or aggravated by the feet or psychiatric disorder, without any additional explanation. Accordingly, remand is required. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the headaches from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused or aggravated by the service-connected psychiatric disorder with sleep impairment and/or bilateral feet disabilities. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.