Citation Nr: 21015092 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-13 988 DATE: March 16, 2021 ORDER Entitlement to service connection for headaches with blurring of vision is denied FINDING OF FACT The weight of competent and credible evidence is that the Veteran’s current headache disorder did not manifest until more than one year after active duty and was not caused by any aspect of active duty. CONCLUSION OF LAW The criteria for service connection for a headache condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Marine Corps from June 1972 to March 1974 and from August 1984 to August 1987. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO). In October 2018 the Board remanded the appeal for further development including to obtain current VA and private treatment records and provide a new examination. As the Veteran has not responded to any of the repeated requests for a new examination to be scheduled or to authorize recovery of records of care at private medical facilities, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that “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 there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Entitlement to service connection for headaches The Veteran’s service treatment records show that in February 1973 the Veteran injured his head in a fall in the post exchange, receiving a cut above the left eye for which he received sutures. He did not lose consciousness, and a neurological and eye examination at the time was within normal limits and without fracture. There was no medical follow up. In a March 1974 discharge physical examination, the examiner noted no vision or neurological abnormalities or any residuals of the fall and eye injury. In a May 1984 reenlistment examination, the Veteran denied any frequent headaches or any episodes of loss of consciousness. The examiner noted no vision or neurological abnormalities. During the Veteran’s second period of active duty, he reported photophobia during a vision examination in September 1984. Visual acuity was normal and no prescription for corrective lenses was required. He did not report headaches. On one occasion in October 1986, a clinician treated the Veteran for sinusitis that included symptoms of headaches. There was no follow up and no mention of a head injury. A record of examination at discharge in 1987, if any, was not clearly present in the STR as much of the file was scanned from microfiche and is illegible and has some records associate with another Marine. In an initial VA assessment for medical care in December 2012, the Veteran reported headaches and blurred vision, “on and off,” occurring every other month, twice per month, lasting up to 10 minutes. He denied a current headache and was a poor historian regarding the onset, saying “maybe while in MC.” In March 2013, a VA clinician noted receipt of a telephone call from a private hospital, reporting “Vet just told me he fell and hit his head on March 19, 2013; this is the first I heard of this from Residential.” The clinician further noted that the Veteran was taken by paramedics to the private hospital, underwent a computed tomography scan and an echocardiogram that incidentally identified a heart valve deficit. In an April 2013 treatment record from a private hospital, a clinician noted that the Veteran had been treated at the original private hospital in March 2013 after a fall. There was no mention of the nature of any injuries. In April 2013 the Veteran submitted a claim for service connection for headaches. He cited the in service fall and laceration above the left eye in service but did not mention any fall or injury the previous month. The Veteran noted that no X-ray was obtained after the 1973 injury but that the corpsman told him that his brow bone was cracked. He reported that over the years he experienced severe headaches and blurred vision. At the February 2014 VA examination, the examiner diagnosed migraine headaches. The examiner opined that the Veteran’s current headache disorder was less likely than not due to his military service. The examiner noted that the STRs showed no loss of consciousness and that the Veteran himself told him that the headaches started over a year after an episode where he did lose consciousness. The examiner’s conclusion was that it was less likely than not that the headaches were caused by a fall in February 1973. See February 2014 C&P Exam, p. 6. In March 2016 the Veteran perfected his appeal, and in October 2018 the Board issued remand orders for a new examination. The Board found that the February 2014 VA examination to be inadequate. The Board stated that “the VA examiner’s opinion is based upon an inaccurate factual basis, as it appears that he has interpreted the Veteran’s statements to reflect that he suffered a head injury during service in February 1973 with no loss of consciousness, and then a second head injury with loss of consciousness at some point after his March 1974 separation from service with the development of headaches one year later in 1975. However, the Veteran has only reported suffering a single head injury during service in February 1973. As such, remand is required for an additional medical opinion.” See October 2018 BVA Decision, p. 4. VA attempted to obtain authorization to procure records from the private hospital where he received treatment for what was reported to VA as a fall and hit on the head and to provide the Veteran with another VA examination, as notification letters were sent to the Veteran in November 2019 and July 2020. The Veteran did not respond to either of these notification letters. In July 2020 the Veteran was provided a supplemental statement of the case (SSOC) in which the Veteran was informed that VA would move forward with his case, but that a VA examination would be provided at his earliest convenience should he indicate a willingness to report to an examination. To date, no response has been received by the Veteran. Given the numerous attempts to contact the Veteran to schedule an examination, and the Veteran’s failure to reply or otherwise arrange for the scheduling of an examination, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). “The duty to assist is not always a one-way street. If a veteran (appellant) wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, while the VA does have a duty to assist the Veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the Veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the VA to “turn up heaven and earth” to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination, and a claimant fails to report for such an examination without good cause, action will be taken in accordance with 38 C.F.R. § 3.655(b). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the first two elements of service connection have been met, as the evidence of record shows both a current disability and an in-service event. However, the claim must be denied as the record does not show that the current recurrent headache disorder started in service or was caused by service including a heat injury in 1973. The Board acknowledges that the Veteran attributes his current headache condition to be caused by service. However, the Veteran has not shown that he has the specialized training, experience or expertise to render such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board places very low credible weight on his reporting of the injury sustained in 1973 as it is inconsistent with the record. The corpsman in 1973 noted only a laceration with no loss of consciousness and specifically noted no fracture, not that there was a cracked eyebrow bone. There was not follow up and there was no chronic headache reported by the Veteran or noted by examiners in the 1974 discharge and 1984 reenlistment examinations. In the 2012 VA intake assessment, the Veteran could not provide any report on the onset of his headache symptoms other than “maybe in the Marines.” Finally, there is evidence of a fall and potential head injury in March 2013 for which the Veteran did not respond to requests for authorization to recover those records. The Veteran himself did tell the examiner in 2014 that that the headaches started over a year after an episode where he did lose consciousness. This inconsistent reporting of onset and causation warrants very low weight. Although the Board previously found the 2014 examiner’s opinion as inadequate because the Veteran reported only one fall and injury, on further review there is evidence of a second head injury in 2013 albeit without medical evidence of the nature of the injury and it was after the Veteran had reported chronic headaches in 2012. The Veteran never provided a clear date of onset but only referred to the 1973 fall. Therefore, evaluating the evidence of record, the Board finds that the Veteran’s headaches were not caused by a fall in 1973 or any other aspect of active duty, nor is there any credible evidence that they began during any period of active duty. Headaches were not observed or reported in two subsequent Marine Corps examinations. The earliest record of chronic headaches was in the VA intake assessment in December 2012 where the Veteran was asked and had the opportunity to report in detail on his history but noted only maybe in the Marines. The Board does not rely on the opinion of the 2014 examiner but does place weight on the record of what the Veteran told the examiner about his history. Finally, there is some evidence of a fall in 2013 but the Veteran did not cooperate with obtaining those records that could have been more specific about his history and the nature of injuries in the 2013 fall. (continued next page) The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED