Citation Nr: 21025040 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-33 637 DATE: April 27, 2021 ORDER Entitlement to service connection for headaches, to include as secondary to cervical spine degenerative disc disease (DDD), is denied. FINDING OF FACT The most probative evidence is against finding that the Veteran’s headaches are related to his service – including caused or aggravated by his service-connected disabilities, especially the DDD of his cervical spine. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for headaches, including as secondary to the cervical spine DDD. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1988 to July 1992. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim back to the RO in October 2018 for further development and consideration – including to have the Veteran examined for a medical nexus opinion concerning the origin of his claimed headaches, especially insofar as whether related or attributable to his military service, such as caused or aggravated by the DDD of his cervical spine. Entitlement to service connection for headaches, to include as secondary to cervical spine DDD Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 relevant disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).   Service connection may be granted, as well, on a secondary basis for disability that is proximately due to, or the result of, or aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran attributes his headaches to the service connected DDD of his cervical spine, but the Board finds that that most probative evidence is against this posited correlation, either by way of causation or aggravation.   The Veteran was first afforded a VA examination for his headaches in August 2013. He cited headache pain with nausea. He reported experiencing headaches two to three times a week, each lasting approximately one to two hours. He denied prostrating attacks of headache pain. He said he had started having headaches while in jump school, so during his military service. He added, however, that he had never sought treatment for his headaches – either while in the military or since his discharge. The Veteran’s service treatment records (STRs) and post-service medical records bear this out since entirely unremarkable for any indication of complaints or treatment of headaches, so including for any that could be considered chronic or recurring. Following the Board’s October 2018 remand of this claim, the Veteran was examined specifically for his headaches in September 2020. He reported having headaches lasting from hours to days. He reported also experiencing nausea as well as sensitivity to sound and light. He described his headache pain and pulsating or throbbing and localized sensation to one side of his head. He said his headaches began after violently banging his head on uneven ground while performing practice jumps in the military. The examiner considered November 2014 records the Veteran submitted showing a differential diagnosis of episodic migraines versus cervicogenic migraines versus occipital neuralgia. But, after considering this and other relevant evidence, including the Veteran’s lay statements regarding his medical history, the examiner concluded the Veteran’s headaches are less likely than not caused by his service-connected disabilities (specifically referring to the DDD of his cervical spine). The examiner explained that the cause of the Veteran’s headaches is unclear, but the symptoms point to migraines that are unrelated to the service connected DDD of his cervical spine. The examiner also found that it is less likely than not the Veteran’s headaches alternatively are aggravated by this service-connected disability. The Board finds this medical opinion highly probative as it considered all the relevant evidence, including the Veteran’s lay statements and evidence he submitted personally, and since the opinion is well reasoned and provides the required rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no equally or certainly no more probative (competent and credible) medical nexus opinion refuting that VA examiner’s unfavorable conclusion of no correlation between the Veteran’s service and service-connected disabilities and his later diagnosed headaches. The Board has considered his lay statements and pleadings regarding the origin or cause of his headaches. But, while he is certainly competent to report on his symptoms (e.g., head pain, nausea, light sensitivity), he does not have the competence to ascribe his symptoms to a particular diagnosis and provide a probative opinion regarding etiology, especially in terms of whether related or attributable to his service or his service-connected disabilities. This determination is outside the realm of his lay competence since the condition at issue is medically complex, not instead merely simple. 38 C.F.R. § 3.159(a)(1) and (a)(2). And, although the VA examiner surmised the Veteran’s headaches are migraines, the examiner did not associate them with anything that occurred during the Veteran’s service or with the service connected DDD of his cervical spine. See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). ui For these reasons and bases, the preponderance of the evidence is against the claim, not instead supportive of it or even in relative balance (equipoise) to warrant applying the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, this claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.