Citation Nr: 21022551 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-41 050 DATE: April 16, 2021 ORDER Service connection for headaches, to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current tension headaches began during active service, were manifested to a compensable degree within one year of separation; or, are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for headaches. In April 2014, VA received the Veteran’s Notice of Disagreement (NOD). In October 2015, the RO issued a Statement of the Case (SOC). In November 2015, VA received the Veteran’s VA Form 9 appeal to the Board. In November 2018, the Board remanded the case for further development and adjudicative action. Service Connection 1. Entitlement to service connection for headaches, to include as due to herbicide exposure. The Veteran seeks service connection for headaches. With his claim for service connection, he reported “constant” headaches and claimed that the headaches were due to herbicide exposure. See August 2012 VA 21-526 Veterans Application for Compensation or Pension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, including migraine headaches (as an organic disease of the nervous system noted under 38 C.F.R. § 3.309(a)), is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, provided that the disease manifests to a compensable degree any time after service, in a Veteran who had active military, naval, or air service in the Republic of Vietnam and its surrounding off-shore waters during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Headaches are not on the list of diseases presumed to be related to herbicide exposure. However, a Veteran may establish service connection for a disability due to presumed herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). At the outset, the Veteran served within the Republic of Vietnam and is presumed to have been exposed to herbicides. In addition, his decorations include the Combat Infantryman Badge, Vietnam Service Medal with a Bronze Service Star and a Purple Heart. See DD Form 214. The Veteran has a current diagnosis of tension headaches. See December 2020 VA examination report. Furthermore, service treatment records (STRs) show that the Veteran reported “frequent or severe headaches” on a report of medical history at separation from service. However, there is a physician note below indicating “headache” and “vertigo” – “not now.” See STRs dated March 8, 1968. Additionally, there is no evidence of headaches within one year of separation from service. The Veteran filed a service-connection claim for back and knee disabilities in May 1968, just one month following service discharge. In conjunction with that claim, the Veteran was afforded a VA orthopedic examination in August 1968. That examination report indicates that on March 16, 1967, the Veteran was traveling in a vehicle that went over a landmine. When the landmine detonated, “the entire vehicle left the ground, returning to the ground, of course, harshly.” The Veteran stated that he incurred knee and back injuries as a result of the incident but did not report headaches or a head injury. The examiner indicated “normal” for the “nervous system” section of the general medical examination form. There is little medical evidence available prior to 1999. Notably, however, in September 1986, VA received a claim for a “neuropsychological disorder,” claimed as due to agent orange exposure. In response, the Veteran was afforded a neuropsychological and Agent Orange combination examination that addressed all bodily functioning. Notably, the Veteran denied headaches as noted on the examination report, and no neurological impairment was indicated. Turning to the period on appeal, VA treatment records provide sporadic evidence of an ongoing headache problem. Specifically, a February 2010 VA treatment note lists headaches as an ongoing problem and an April 2016 VA treatment note records a history of intermittent headaches treated with Tylenol. See VA primary care outpatient note dated April 29, 2016; VA primary care H & P note dated February 10, 2010. A VA treatment note from November 2015 also references “headaches on and off.” VA primary care triage note dated November 23, 2015. The Veteran received an initial VA examination for headaches in March 2013. The March 2013 examiner opined that the Veteran’s headache symptoms were less likely than not related to service. The examiner reasoned that “there is no documented chronic condition related to subjective mark on discharge paperwork 45 years ago in reference to a headache.” However, as noted above, the record contains references to headache symptoms during the 45-year time period identified by the March 2013 examiner. Additionally, there is no indication that the March 2013 examiner elicited any lay evidence from the Veteran. As a result, in November 2018, the Board remanded the claim for service connection for headaches. The remand directives instructed the RO to obtain a new VA examination and opinion regarding the etiology of the Veteran’s headaches. Specifically, the Board indicated that the reviewing examiner should elicit testimony from the Veteran regarding the onset and nature of his headaches, address a 1968 report of medical history in which the Veteran endorsed “frequent” headaches, a February 2010 VA treatment note listing headaches as an ongoing problem, and a April 2016 VA treatment recording a history of intermittent headaches treated with Tylenol. Finally, the examiner was instructed to opine whether it is at least as likely as not that the Veteran’s headaches had onset in, or are otherwise related to, active service. Following the November 2018 Board remand, the Veteran received VA examinations in October and December 2019. The examinations were completed by the same examiner, and the findings regarding the Veteran’s current headache symptoms are essentially identical. The nexus opinion section of the October 2019 examination report is incomplete, but the December 2019 examination report reproduced, and expanded upon, the October 2019 nexus opinion. Both examination reports reflect that the Veteran’s current headache disability do not involve migraines. Rather, the diagnosis is tension type headaches, and the examiner found that the tension headaches are triggered by stress, and were related to the “significant medical conditions which are affecting the veteran presently.” During the December 2019 examination, the Veteran reported onset of headaches in approximately 1999. The examiner referenced the VA treatment notes from 2010 and 2016 in the examination report and opinion. However, the examiner opined that the Veteran’s headaches were less likely than not related to active military service. In support, the examiner stated that “[t]here is one report of HA reported in 1968,” and further that there were “no reports of recurrent HA upon separation in 1968.” The examiner indicated that the Veteran did not use medication for headaches, and concluded that the Veteran’s headaches were “stress related” and identified “cardiovascular comorbidities and recent hospitalization on 12/12/19 due to cardial (sic) valve dysfunction and repair.” Finally, the examiner noted that the first indication of headaches was “30 years after active duty.” Turning to the probative value of the medical opinions of record, the following factors are considered when evaluating the probative value of medical opinions: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Regarding the March 2013 opinion, and as noted by the November 2018 Board remand, the March 2013 examiner failed to address several VA treatment records noting headaches and did not elicit any lay evidence from the Veteran. Accordingly, it is afforded no probative value. Regarding the similar October 2019 and December 2019 examinations, the examiner addressed all evidence identified by the November 2019 Board remand. Furthermore, the examiner provided a clearly articulated opinion with a rationale based on the lay and medical evidence of record. Accordingly, it is afforded significant probative value. Finally, the record provides no indication that the Veteran’s current headaches may be related to herbicide exposure. Although no examiner has opined specifically on this issue of nexus to herbicides, as noted above, no presumption of in-service incurrence due to herbicide exposure is available for headaches and there is no medical evidence or literature suggesting a possible nexus between the Veteran’s current headaches of record. Although the Veteran may believe that his current headaches are related to herbicide exposure, his opinion in this regard is not competent. In this regard, the question of the etiology of the Veteran’s headaches falls outside the realm of knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Similarly, although the Veteran is competent to report headache symptoms, he is not competent to opine that his current headache diagnosis is related headaches experienced during service. See id. Furthermore, he has not reported, and the evidence does not show, that he experienced headaches continuously from service. In conclusion, there is no evidence that the Veteran’s one-time report of headaches on the March 1968 report of medical examination is related to current headache symptoms. As noted by the December 2019 examiner, there was no evidence of headaches at separation from service or during the next 30 years after service. The Veteran has not identified, and the evidence does not show, an in-service injury, event, or disease that is related to his headaches. Therefore, the preponderance of the evidence is against the Veteran’s claim for service connection for headaches. As such, the benefit of the doubt doctrine is inapplicable. Accordingly, service connection for headaches is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.