Citation Nr: 21021187 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-37 854 DATE: April 12, 2021 ORDER Entitlement to service connection for headaches is denied. FINDING OF FACT The Veteran does not have migraines; the current disability of tension headaches was not manifest in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to December 1972 with additional service in the Army Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision. In January 2020 the Board remanded the claim along with several others that were on appeal at that time for additional development, in particular verification of the Veteran’s period of active service, including his time in the U.S. Army Reserves, and medical treatment record for the period spanning the Veteran’s incarceration from September 1989 through the present. Additional active duty was ultimately not identified. The matter was returned to the Board. In a September 2020 Appellate Brief, the Veteran’s representative confirmed that “[the Veteran] has been unable to secure and submit any additional evidence in support [of] his appeal and therefore requests the evidence of record be thoroughly reviewed.” Based on this statement, the Board concluded in October 2020 that there are no medical records available covering the period of the Veteran’s incarceration. The Board remanded this matter again in October 2020 for an addendum medical opinion as to the etiology of headaches. The matter has been returned to the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In general, 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). Service connection may be granted for any disease initially diagnosed after service 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases such as organic diseases of the nervous system, which would include migraines, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for headaches is denied. There is current disability as to headache (but not migraines), as demonstrated in November 2014 and November 2020 VA examinations ordered by the Board. However, to the extent that the Veteran asserts his headaches are related to a qualifying period of service, the documented record is contrary to this assertion and the preponderance of the evidence is against finding that service connection on any available basis is warranted. Review of the record reflects there are no migraines, thus service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Moreover, the preponderance of the evidence is against finding that a nexus exists between the current headaches and an in-service injury or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The report of VA headaches examination in November 2014 reflects that the examiner confirmed the diagnosis of headaches but did not indicate the date of onset. The Veteran reported that he could not recall when his headaches started but confirmed that he has had headaches for the last 6 to 7 years and that his condition has worsened overtime. The examiner opined that the Veteran’s disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In providing his medical opinion, the examiner noted that the Veteran’s STRs note a complaint of headaches with insomnia on April 9, 1971 and provide for a diagnosis of cephalgia. The examiner also noted that the Veteran was referred to neurologist for severe headaches on August 14, 1980 but that no diagnosis was reported by the neurologist. The examiner cited lack of continuation of care after service and concluded that the Veteran’s headaches were acute and self-limited. STRs include the aforementioned April 1971 medical note reflecting a complaint of headaches. The note also indicates that the Veteran’s head was examined producing a negative study. The examiner noted that the Veteran’s “cranial vault, sella turciea, and petrous ridges appear normal. The pineal gland is calcified and in the midline.” An April 15, 1971 medical note reflect that the Veteran complained of monthly headaches. A February 1972 medical note reports a complaint of headaches. A November 1976 examination does not note any relevant conditions. A September 1980 report of medical history indicates frequent and severe headaches occurring 2 to 3 times a week. It indicated that the Veteran has been seen by a neurologist. A September 1980 reserve examination does not note any relevant conditions. The record indicates the Veteran was incarcerated since his separation from the U.S. Army Reserves in September 1989. As that was the case, the Board observed in October 2020 that it was reasonable that he may not have been offered treatment for headaches while in prison. Consequently, it ordered an addendum opinion to address why the examiner concluded that the Veteran’s headaches were acute and self-limited, especially when there is evidence of multiple complaints of headaches in service. Accordingly, the instruction sheet for the VA examination that was provided to the examiner reflects the following: In providing the medical opinion, the examiner should take into consideration the fact that the Veteran has been incarcerated since his separation from the U.S. Army Reserves in September 1989. The November 2020 VA examiner found no migraines. Rather, the diagnosis was tension headaches with a date of diagnosis of 1971. The Veteran reported the onset of sudden headaches in 1971 for which he sought medication attention. He stated headaches he has had recently are the same as those in 1971. He stated he has them 2 time a week and they last 90 minutes and are 8/10 on a pain scale pain if he does not have Tylenol. With Tylenol, they are 3/10 and last 15 minutes. The headaches were described by the Veteran as bilateral stabbing pain in forehead with hypersalivation. He denied neurovascular or sensory changes. The VA examiner found that the claimed condition of headaches was less likely not (less than 50 percent probability) incurred in or caused by service. The rationale was that the veteran was seen by a neurologist for severe headaches on August 14, 1980, with no diagnosis was reported by the neurologist. Several DBQ's reviewed in the C-file stated "No" to headaches. There is a lack of chronicity of care as well related to headaches and there is not post treatment documentation for headaches in the c-file. In this regard, we note that headaches were found to be not present in two VA November 2014 examination reports (DBQ’s). The Board notes that post-service treatment records are minimal but ultimately consistent with the history as assessed by the VA examiners. We conclude that the preponderance of the evidence is against finding that a nexus exists between the current tension headaches and an in-service injury or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, service treatment records reflect the aforementioned findings, but the examiner has provided a well-supported conclusion that the current condition is not related to service. No other medical evidence provides a nexus between the current tension headaches and service. The medical opinion evidence is against the claim. To the extent that the Veteran asserts the current headaches have been present since service, the suggestion is inconsistent with the above-discussed record and not credible particularly in view of the denial of headaches elsewhere in the record as noted by the 2020 examiner. There is no credible evidence linking the present tension headaches to an in-service disease or injury. The 2020 examiners’ opinion clearly explains why, medically, there is no relationship between current headaches and service, to include the reports of headache. The opinion of the 2020 VA examiner is uncontroverted by any other medical opinion. Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the current headaches first manifested years after service and are unrelated to the headaches reported during service. There is no significantly probative evidence that current headaches are otherwise related to service, and the weight of the evidence is against so concluding. 38 C.F.R. § 3.303 (d). The 2020 VA opinion is highly probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion is not supportive of the claim. While Veteran believes current headaches are related to service, and is competent to report pain and such symptoms, the medical evidence, most notably the 2020 opinion, identifying no headache disorder for years following service is far more extensive, reliable and credible than statements from a lay informant. Indeed, the VA examiner considered the fact that the Veteran had been incarcerated as required by the Board. We also note the following: Headache may result in disability and the rating schedule provides numerous instances where headache is a manifestation of a particular disease or injury. Migraine alone is recognized a disease process. The law is clear under sections 1110 and 1131. There must be disability and such disability must be due to a recognized disease or injury. There is nothing in this record that establishes that a tension headache is a recognized disease or injury. The fact that someone has pain, to include head pain does not mean that they have met the requirements under sections 1110 or 1131. The presence of disability is only one part of the equation. Although not controlling, tension headache is not listed in the rating schedule and a grant of service connection would require an improper rating by analogy.   The preponderance of the evidence weighs against finding that any current headache disorder occurred in or is otherwise related to service. There is no reasonable doubt to resolve. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.