Citation Nr: 21022244 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-31 464 DATE: April 15, 2021 ORDER Entitlement to service connection for migraine headaches, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for irritable bowel syndrome (IBS) to include as due to herbicide exposure is denied. Entitlement to service connection for sinusitis to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. Migraines headaches were not manifest in service and are not otherwise attributable to service. 2. Migraine headaches are not caused or aggravated by service-connected disease or injury. 3. IBS was not manifest in service and is not otherwise attributable to service to include herbicide exposure. 4. Sinusitis was not manifest in service and is not otherwise attributable to service to include herbicide exposure. CONCLUSIONS OF LAW 1. Migraine headaches were not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). 2. Migraine headaches are not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2020). 3. IBS not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). 4. Sinusitis was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision. In September 2018 and July 2020, the Board remanded the Veteran’s claims for further evidentiary development. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). Migraine headaches The Veteran contends that he has migraine headaches that are related to service or are alternatively secondary to his service-connected bilateral hearing loss disability and tinnitus. He has not contended, nor does the evidence of record otherwise show, that his migraine headaches are secondary to his service-connected chronic obstructive pulmonary disease (COPD), coronary artery disease status post myocardial infarction, close fracture of the left rib, scar of the back, tinea versicolor, or ganglion cyst of the wrist. Direct service connection The Veteran’s service treatment records are absent complaints of or treatment for migraine headaches. However, the Board notes that the Veteran is competent to report having headaches during service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, during a VA examination dated March 2015, the Veteran reported that his current headache disorder began in 1967 during service while working in the boiler room. He moreover noted that he continued to have headaches on a daily basis and stated that they became worse. The VA examiner documenting a current finding of migraine headaches. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s migraine headaches are related to service. Specifically, a VA opinion was obtained in December 2020 as to whether the Veteran’s current migraine headaches are related to service. After review of the Veteran’s medical history, the VA examiner concluded that the Veteran’s current migraine headaches were less likely than not incurred in or caused by service. The examiner’s rationale for her conclusion was based in part on her review of postservice medical records which documented treatment for many conditions, but not primary headaches. The examiner further noted that although the Veteran was seen for viral illnesses wherein headache was a symptom, it was not a headache by itself. As such, the examiner indicated that the evidence did not indicate a chronic migraine headache disability had existed since service. The December 2020 VA opinion was based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with migraine headaches for many years after service. The examiner also noted review of the Veteran’s report of headaches during service and that the headaches continued after discharge from service and concluded that the Veteran’s current migraine headaches were not related to service. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current migraine headaches are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran himself asserts his current migraine headaches are related to her service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, migraine headaches specifically were not noted during service and his March 1970 separation examination revealed normal findings. Further, the in-service examination is more credible and more probative than his lay assertions. We conclude that the objective evidence is more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements with regard to a nexus between his migraine headaches and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional. Secondary service connection The competent evidence establishes that the Veteran has migraine headaches. See, e.g., the March 2015 VA examination report. Additionally, the Veteran is currently service-connected for a bilateral hearing loss disability and tinnitus. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current migraine headaches are due to or aggravated by his service-connected bilateral hearing loss disability and tinnitus. Specifically, a VA medical opinion was obtained in December 2020 as to whether the Veteran’s migraine headaches are caused or aggravated by the service-connected bilateral hearing loss disability and tinnitus. After review of the Veteran’s medical history, the VA examiner concluded that it is less likely than not that the Veteran’s migraine headaches are proximately due to or aggravated by the service-connected bilateral hearing loss disability and tinnitus. The examiner’s rationale for her conclusion was based on her review of the medical evidence of record, in particular audiology records to include a VA audiology examination in which the Veteran did not report any headaches in association with his hearing loss and tinnitus. The December 2020 VA medical opinion was based upon thorough consideration and analysis of the Veteran’s pertinent medical history. See Bloom, supra. The Board acknowledges the Veteran’s submission of medical research which indicates a link between hearing loss and tinnitus and headaches. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses]. However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran’s case. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As discussed in detail above, the December 2020 VA examiner reviewed the Veteran’s medical history and considered his complaints and thereafter concluded that the Veteran’s migraine headaches are not caused or aggravated by the service-connected bilateral hearing loss disability and tinnitus. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the research submitted by the Veteran is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner’s opinion. The Board acknowledges the Veteran’s statements that his migraine headaches are related to his service-connected bilateral hearing loss disability and tinnitus. The Board notes that the Veteran is competent to report that he has been diagnosed with migraine headaches. However, to the extent the Veteran proffers this information as a positive nexus between his migraine headaches and his service-connected bilateral hearing loss disability and tinnitus, the Board finds that such an opinion is outweighed by the evidence of record, in particular the December 2020 VA medical opinion which was based on thorough review of the Veteran’s pertinent medical history and medical condition and supported by adequate rationale. Therefore, this lay evidence is accorded little probative value. Here, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for migraine headaches, to include as secondary to service-connected disease or injury. The benefit sought on appeal is accordingly denied. IBS and sinusitis The Veteran contends that he has IBS and sinusitis that are related to service to include as due to herbicide exposure as well as exposure to asbestos, jet fuel, soot, and lead paint. The Board notes that the Veteran’s service treatment records document treatment in July 1967 for diarrhea and stomach cramps. The remainder of the service treatment records are absent complaints of or treatment for any symptoms associated with IBS, and service treatment records do not document any complaints of or treatment for sinusitis. With regard to the Veteran’s reported exposure to asbestos, jet fuel, soot, and lead paint, the Board notes that the Veteran is competent to report exposure to these environmental hazards and that his military occupational specialty (MOS) was a boiler technician. With respect to the Veteran’s reported herbicide exposure, the Veteran’s personnel records confirm his Vietnam service and herbicide exposure is therefore presumed. Additionally, the Veteran has been treated for sinusitis and IBS and he contends that these symptoms have persisted since service. See, e.g., VA opinion reports dated December 2020. The Board notes that VA regulations provide that certain diseases associated with in-service herbicide exposure may be presumed service connected. See 38 C.F.R. §§ 3.307, 3.309(e) (2020). The Veteran’s current sinusitis and IBS are not included as a presumptive condition. In any event, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee, supra. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current sinusitis and IBS are related to his service. Specifically, VA medical opinions were obtained in December 2020 as to the etiology of the Veteran’s sinusitis and IBS. Pertinently, the VA examiner noted the Veteran’s reported herbicide exposure as well as exposure to jet fuel, soot, asbestos, and lead paint and the in-service treatment for diarrhea and stomach cramps in July 1967. After consideration of the Veteran’s medical history, the VA examiner concluded that it is less likely than not that the Veteran’s sinusitis and IBS were incurred in or caused by service. With regard to the sinusitis opinion, the examiner’s rationale for her conclusion was based on her finding that while certain environmental chemicals are recognized to cause sinusitis, they only cause acute sinusitis and the symptoms are resolved once the offending agents are removed. She further noted that acute sinusitis by itself does not evolve into a chronic sinusitis especially in the absence of environmental triggers. She also noted that herbicides, lead paint, and asbestos are not recognized to cause chronic sinusitis. With respect to her IBS opinion, the examiner’s rationale for her conclusion was based on her finding that while the Veteran’s 1967 service treatment record documented treatment for stomach cramps and diarrhea, the condition at that time appeared to be consistent with acute gastroenteritis. She noted that this condition resolves on its own and does not progress into IBS. Moreover, the Veteran had undergone multiple endoscopies which only identified an esophageal stricture, and the remainder of the medical records did not show complaints consistent with IBS. She further noted that current medical literature did not acknowledge herbicide agents, lead paint, and asbestos to cause IBS. The December 2020 VA opinions were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom, supra. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with chronic sinusitis and IBS for many years after active service. The examiner also noted the Veteran’s in-service exposure to herbicides and other environmental hazards in service which she determined to be less likely as not related to the current sinusitis and IBS. The Board acknowledges the Veteran’s submission of research which indicates a link between the Veteran’s sinusitis and IBS and service. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin, supra. However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran’s case. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones, Beausoleil, and Libertine, all supra. The December 2020 VA examiner reviewed the Veteran’s medical history and considered his complaints and thereafter concluded that the Veteran’s current sinusitis and IBS are not related to in-service disease or injury. The Board has therefore placed great probative value on the findings of the VA examiner. As such, the research submitted by the Veteran is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner’s opinions. To the extent the Veteran himself asserts his current sinusitis and IBS are related to service, the Board notes that the Veteran has been diagnosed with sinusitis and IBS. He also competent to report that he has had symptoms since service. However, neither sinusitis nor IBS were not noted during service. The Board further observes that the Veteran has reported longstanding sinusitis and IBS symptoms. The Board notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal examinations prior to separation pertaining to sinusitis and IBS. Further, the in-service examination is more credible and more probative than his after-the-fact lay assertions. We conclude that the normal examinations upon separation are far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must therefore find that the Veteran’s statements with regard to a nexus between his sinusitis and IBS and service to be of minimal probative value and outweighed by the VA opinions, prepared by a skilled neutral professional. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2020). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.