Citation Nr: 21015726 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 08-09 527 DATE: March 18, 2021 ORDER Service connection for a disability manifested by headaches and blackouts is denied. FINDING OF FACT The preponderance of the evidence is against finding that a disability manifested by headaches and blackouts began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a disability manifested by headaches and blackouts are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to October 1976. The Board issued a decision denying this appeal in November 2016. In April 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), vacating the Board’s decision and remanding for additional proceedings. In February 2018, the Board remanded the appeal for additional development. The Veteran asserts that service connection is warranted for a disability manifested by headaches and blackouts. Specifically, he contends that the disorder is related to the sinusitis and/or allergic rhinitis treated during military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. Service treatment records demonstrate that in November 1975, the Veteran presented with complaints of a sore throat, runny nose, slight cough, and headaches. Following evaluation, the diagnosis was an upper respiratory infection. In a subsequent record dated in December 1975, the appellant complained of persistent upper respiratory symptoms and frontal maxillary pain, which had persisted for one week. Sinusitis was ruled out. In February 1976, the Veteran presented for treatment with head congestion. On examination, it was noted that he had a normal head. Upper respiratory infection was again diagnosed. In a July 1976 record, the Veteran presented with complaints of dizziness. Notwithstanding, the appellant had a normal clinical evaluation at the time of the October 1976 separation examination. Additionally, he denied a history of motion sickness or disturbances of consciousness. In the accompanying Report of Medical History, the Veteran denied a history of frequent or severe headaches or fainting or dizzy spells. Post-service medical records reveal treatment for headaches, blackouts, and syncope. In a December 1983 private treatment record, the appellant reported that he began experiencing seizures in October 1981. Specifically, he was lifting weights outside his parents’ mobile home when he lapsed into a tonic clonic grand mal seizure. It was noted that the appellant had a significant past history related to the seizure disorder to include a febrile seizure as a child, a mild concussion at the age of 2, and a possible second concussion in 1977 when the he was involved in a whiplash type of injury with transient loss of consciousness. In a May 1992 VA treatment record, the Veteran presented with complaints of neck pain and blackouts. A July 1998 record notes complaints of headaches. A subsequent VA treatment record dated November 1998 provided a diagnosis of convulsive syncope since 1981, secondary to cervical spinal cord compression. An April 2002 private neuropsychological assessment indicates a diagnosis of cognitive and seizure disorders; however, the physician did not suggest that the conditions were related to military service. In testimony provided during the July 2013 Board hearing, it was asserted that the appellant’s condition had its onset during military service and has continued since that time. The Veteran underwent a VA examination in November 2013. The examiner noted a diagnosis of headaches, seizures, and convulsive syncope. Following evaluation of the appellant and review of the clams file, the examiner determined the appellant’s condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. He noted that the appellant was hospitalized for two months from a traumatic brain injury due to a motor vehicle accident during childhood, resulting in multiple fractures. He was noted to have a febrile seizure prior to the incident. Additionally, there was no mention of a seizure disorder during military service or any seizure-like activity described throughout service treatment records. In the separation examination, the appellant denied motion sickness or disturbances of consciousness, headaches, dizziness, or fainting spells. Likewise, in the Veteran’s questionnaire, he did not confirm a history of the aforementioned symptoms. The examiner noted that there was no documentation on the appellant until 1979 when he was described as having a worker’s compensation injury from a motor vehicle accident, resulting in neuritis symptoms in the extremities and chronic neck pain. No mention of seizure action was described until October 1981 when the appellant was weightlifting with possible hyperventilation resulting in convulsion and prompting further resting. The examiner further noted that incidentally, the Veteran was never found to have a chronic sinusitis from service that resulted in a brain injury or vascular deprivation to his brain causing seizure or meningitis. His presumed meningitis was years following service. Notably, his sinus x-rays in service were negative and no imaging studies during his hospitalization in the 1980s suggest a chronic sinus infection or brain anomaly. The examiner opined that any relation the Veteran presumes was caused by a cold sore or sinus infection is not substantiated by clinical studies. He additionally determined that although the appellant was noted as having a cold sore at one point during service, there was no evidence that it went on to cause encephalitis or meningitis as a complication at that time, nor could it result in a delayed reaction years after service when the appellant was presumed, but not proven, to have chemical meningitis. The Veteran was provided an additional VA headache examination in June 2014, at which time a diagnosis of tension headaches was provided. The examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury or disease. In support of this finding, the examiner noted that service treatment records did not show evidence of a headache condition. Although the appellant did have occasional respiratory infections or sinus problems, in the July 1975 examination, he stated that he was in good health and there was no complaint of a headache condition. Additionally, the October 1976 separation examination indicated no complaint of a headache condition or even a muscle scalp lower spine condition. His examination was normal with no history of loss of consciousness or headache condition. In sum, the examiner opined that there was no evidence of a headache condition or a cause of the headache condition as a result of the Veteran’s military service. He noted that the current headache description was atypical and there was no neurological deficit. VA seizure disorder, central nervous system and neuromuscular diseases, and headache examinations were provided in December 2015. A history of migraine and tension headaches, Jacksonian seizures (simple partial seizure), and convulsive syncope were noted. The examiner determined that the headaches (migraine and tension) were not likely due to any in-service illness, as the Veteran had no in-service headache condition. He had no chronic sinus condition to cause headaches as evidenced by a normal sinus series in service. Separation examination showed no evidence of sinus, rhinitis, or headache condition. The Veteran was noted to have a negative throat culture in service and therefore no infectious process. He had an occasional sore throat and indigestion, but no diagnosis for the complaints at separation. Further, the entities would not be causative of headache or any type of syncope or seizure disorder. The examiner also determined that it was less likely as not that the convulsive syncope was related to military service as there was no evidence of the condition in service or at separation. She noted that the appellant contended that he either had an infectious process or a circulation problem related to service, causing the condition; however, the in-service sinus series was negative for infection, or any vascular event which could cause a seizure disorder. Further, the throat culture was negative for any infection. Viral upper respiratory infection in service would not be expected to cause any type of central nervous system (CNS) infection and there was no evidence of such at separation. Following service, the Veteran developed the syncope condition following a motor vehicle accident and the condition is likely related to pain due to trauma. The examiner noted that the Veteran had an extensive workup with no evidence by MRI/MRA of any circulation compromise of the brain. Further, the appellant had multiple MRI and CTs of the brain over the years showing no evidence of abnormality related to infectious process or vascular compromise. There was no evidence of infection of the brain in service leading to chronic infection of the brain or vascular compromise. Notably, the appellant had onset of syncope in 1981, five years after service. This occurred after a motor vehicle accident when the appellant was rear-ended and suffered a neck injury. The examiner noted that a review of the appellant’s symptoms showed a different history on multiple occasions, with inconsistency in the history from suboccipital headache pain documented in 1991, frontal headache documented in 1998 and 2004—a significant change. She also reported that seizure symptoms had been inconsistent over the years and changing. Because of the inconsistency in symptoms, it was not possible to give a firm diagnosis for the claimed conditions; however, review of the neurology consults showed diagnoses of convulsive syncope due to vasovagal reaction due to neck pain, which did not occur until 1981, after a motor vehicle accident. He had been diagnosed as having complex migraines, also related to pain and to the motor vehicle accident. He had been diagnosed with atypical seizure disorder after a motor vehicle accident. Considering the review of the condition in the up to date medial reference database, the claimed condition of syncope is most likely diagnosed as vasovagal syncope and not a seizure disorder. In support of the finding, the examiner noted that the Veteran had evidence on multiple occasions of pain provoking the condition, which is most consistent with vasovagal syncope. In addition, the onset of the syncope was post motor vehicle accident and cervical strain. As the symptoms prior to and following the syncope differ over the years and as the headaches associated with the condition have changed, it is less likely that the Veteran has a particular epileptic focus. Instead, the change pattern is more consistent with vasovagal syncope. Further, the fact that the Veteran did not respond to any anti-seizure medication and that they actually worsened the condition also argues against a seizure disorder. Therefore, after a review of the evidence, the diagnosis of atypical seizure disorder was in error due to the inconsistency of symptoms and findings. The diagnosis of tension headaches is correct due to the Veteran having suboccipital headache post cervical spine injury. The examiner noted that cervical spine conditions often caused muscle spasms and pain in the suboccipital region consistent with a tension headache. Further, the Veteran also likely has a diagnosis of migraine post motor vehicle accident with frontal headache preceding syncopal episodes. The examiner noted that the final diagnoses after a review of the evidence were vasovagal syncope and tension and migraine headaches. She reiterated that the conditions were not related to any condition in service. In August 2016, the Veteran submitted excerpts from the 4th edition of Infections of the Central Nervous System (see also August 2016 correspondence and August 2016 correspondence). The Veteran stated that “These chapters tell of the problems I suffered from the infection I got in the Air Force. I had seizures, cognitive problems, loss of conciseness (sp?) as well as other not so dangerous problems.” The chapters included information on chronic meningitis and other diseases such as Streptococcus Pneumonia. Pursuant to a February 2018 Remand, the RO obtained an addendum opinion from the December 2015 VA examiner. The examiner provided her addendum in May 2018. She stated that it is not likely the additional evidence submitted by the Veteran support a nexus between the Veteran’s diagnosed headaches, seizures, convulsive syncope and service, including in-service respiratory infections and treatment. She explained that although the Veteran was diagnosed with herpes labialis (fever blister), there is no objective evidence of the development of any progression of the condition to herpes encephalitis. She stated that Up to Date Medical reference as well as the Veterans’ submitted textbook pages document this condition as a catastrophic brain infection with fever, alteration in consciousness always requiring hospitalization and with a 70% mortality rate even with treatment; and significant profound morbidity even with survival. She noted that although the Veteran is capable of documenting his symptoms through his five senses, he is not a medical professional and does not have the training or knowledge to diagnose herpes encephalitis or meningitis, bacterial or viral meningitis in himself with no diagnostic testing and by five senses alone. She stated that there is no evidence of severe illness in service or even post service which would indicate a diagnosis of herpes encephalitis, bacterial, or viral meningitis. She noted that herpes labialis (cold sore) without progression to brain infection including meningitis or encephalitis is not a known cause of or risk factor for convulsive syncope, headache or seizure disorder per Up to Date or any textbook or medicine. The examiner also pointed out that although the Veteran was documented to have multiple respiratory illnesses while in service, sinus x-rays were negative for any infection and throat cultures were negative for any bacterial infection as noted in the service treatment records. She stated that “therefore although the Veteran is capable of describing symptoms of respiratory infection, he is not capable of diagnosing sinusitis or brain infection or meningitis secondary to sinus infection.” She stated that because there is no objective evidence of sinus infection in service, and as the Veteran had no signs on physical exam at any time of bacterial or viral meningitis or encephalitis, it does not follow that the Veteran suffered brain infections originating in the sinuses causing his convulsive syncope, headaches and seizures. She stated that overwhelming infection of the brain, including meningitis, encephalitis or cavernous sinus infection would be manifested by high fever, change in mental status and a very toxic appearing patient requiring hospitalization and intensive care. As this was not found in this Veteran either during service or after service, it is not likely at all that the Veteran had an untreated brain infection in service causing convulsive syncope, headache and seizures. She noted that a July 1984 LP initially was normal, showing no evidence of latent or chronic infection or meningitis. A second LP showed chemical meningitis which cleared. A third LP was normal. She stated that as LP x 3 showed no infection in the cerebrospinal fluid (CSF), there is no evidence of an untreated meningitis or infection of the brain originating in service. The examiner also opined that it is not likely that the Veteran’s cognitive decline occurred while on active duty and therefore is not related to service. She once again noted that although the Veteran is credible to describe symptoms through his five senses, he is not an expert in the diagnosis of cognitive disorder. She noted that in reference to the post military neuropsychiatric testing of August 1980, it was noted he had no cognitive deficits and he was noted to have “superior intelligence with some passive aggressive tendencies and moderate depression.” He also did not show evidence of objective cognitive deficits until the neuropsychiatric testing in November 2002. She stated that as post service testing showed no cognitive deficit, the cognitive decline did not originate on active duty. Consequently, she found that the Veteran’s lay statements and most recent submission of textbook descriptions of brain infections do not support a finding that current headache, seizure and convulsive syncope are attributable even in part to service. Analysis Although the record demonstrates that the Veteran currently suffers from headaches and blackouts, the weight of the evidence is against a link between the current disability and disease or injury during military service. Service treatment records demonstrate treatment for upper respiratory infections which included symptoms of headaches and a productive cough. The Veteran also presented for treatment for dizziness; however, the records do not demonstrate that the appellant had a disability manifested by headaches and blackouts during military service. Notably, at the time of the October 1976 separation examination, the Veteran had a normal clinical evaluation. It was documented that he denied a history of motion sickness or disturbances of consciousness. In the accompanying Report of Medical History, the Veteran denied a history of frequent or severe headaches or fainting or dizzy spells. Moreover, there is no medical evidence suggesting that the condition is related to military service. Notably, the November 2013, June 2013, and December 2015 VA examiners determined that the condition was not related to military service and had its onset after discharge from service following a motor vehicle accident. The Board finds the VA examiners’ opinion are highly probative because they are supported by a review of the medical evidence of record, a clinical evaluation, consideration of the Veteran’s statements, and a provided a detailed rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Importantly, no other competent evidence of record refutes the opinions provided by the VA examines. In light of the foregoing, service connection for disability manifested by headaches and blackouts is not warranted. With regards to the Veteran’s lay statements that he began to experience cognitive decline while on active duty, the Board finds them to be not credible. As noted by the December 2015 VA examiner in her May 2018 addendum, a post-military neuropsychiatric testing in August 1980 showed no cognitive deficits. To the contrary, the Veteran was noted to have “superior intelligence with some passive aggressive tendencies and moderate depression.” Although the Veteran may honestly believe that he experienced cognitive decline during service, he is not an expert in the diagnosis of cognitive disorder. Given the objective evidence of normal cognitive functioning in 1980, the Board finds the Veteran’s statements to the contrary to be not credible. The Board notes that in the Veteran’s August 2016 correspondence, he also stated that he had seizures during service; however, this is contradicted by a December 1983 private treatment record, in which the appellant reported that he began experiencing seizures in October 1981. Specifically, he was lifting weights outside his parent’s mobile home when he lapsed into a tonic clonic grand mal seizure. Additionally, the Board notes that it does not “reject” the medical treatises provided by the Veteran; however, the Board finds them to be less probative than the opinions provided by the VA examiners, particularly the December 2015 examiner and her May 2018 addendum. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional’s opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician’s special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. There are substantial and significant factors which favor the valuation of the VA medical opinions over the medical treatises provided by the Veteran. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, because a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In this case, the author of the medical treatise was not fully informed of the pertinent factual premises (i.e., medical history) of the case. The medical treatise was not written with the Veteran in mind. The December 2015 VA examiner was fully informed of the factual premises of the case. She thoroughly summarized much of that evidence in her initial December 2015 opinion and again in her May 2018 addendum. With regards to the second inquiry, the December 2015 examiner provided a fully articulated opinion (twice). She considered the medical treatise supplied by the Veteran; and she considered the Veteran’s testimony. Her opinions were unequivocal and couched in the proper legal terminology. The medical treatise did not provide an unequivocal opinion in regard to the Veteran’s specific case insofar as it did not specifically address the Veteran at all. Finally, with regards to the third inquiry, the December 2015 VA examiner supported her opinions with thorough rationales. The rationales were supported by specific evidence from the Veteran’s claims file. The medical treatise once again cannot address the specifics of the Veteran’s case insofar as it was not written with the Veteran in mind. The treatises only serve to show that the symptoms that the Veteran alleges to have had in-service, are common to disabilities such as chronic meningitis. As the Board has noted above, the objective medical evidence reflects that the Veteran did not have either seizures or cognitive decline during service. However, even if he had those symptoms at that time, the medical treatise does little more than suggest that said symptoms could be attributable to chronic meningitis. Again, there is no evidence that the Veteran had meningitis in service or at any time. The Board notes that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. Bostain v. West, 11 Vet. App. 124; Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative). For all the forgoing reasons, the Board finds the opinion of the VA examiners (particularly the December 2015 examiner) to be more probative than the medical treatise supplied by Veteran. The Board acknowledges the Veteran’s assertion that his disability manifested by headaches and blackouts is related to military. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the current disability manifested by headaches and blackouts is a medical question not subject to lay expertise. Jandreua v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The disorder in question here involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. As such, the Veteran’s statement as to the origin of the disability manifested by headaches and blackouts is not competent and it is given no weight. In light of the foregoing, the Board finds that service connection is not warranted for the Veteran’s disability manifested by headaches and blackouts. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for a disability (Continued on next page) manifested by headaches and blackouts must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.