Citation Nr: 21025409 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-25 245A DATE: April 28, 2021 ORDER Entitlement to service connection for a concussion with residual headaches is denied. FINDING OF FACT A concussion with residual headaches were not manifest in service and there is insufficient competent and credible evidence to demonstrate that any such disability was caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a concussion with residual headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1996 to June 2000. These matters come before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded this issue to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110. "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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection under this provision, there must be evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Concussion with residual headaches. The Veterans service treatment records (STR’s) are associated with the claims file. In his October 1996 Report of Medical History, the Veteran endorsed a history of frequent headaches prior to receiving corrective lenses for an eye condition in October 1995; he reported that he had not experienced headaches since that time. However, in the October 1996 enlistment examination, the clinical evaluation revealed normal head, face, neck or scalp and neurologic system. A diagnosis of headaches was not indicated at that time. In a November 1996 STR, the Veteran complained of constant headaches. See November 2013 STR-Medical, p.29. In an October 1997 STR, a clinician noted that the Veteran had head issues including sinus pressure, issues to the frontal lobe and his neck was supple. See November 2019 STR-Medical, p.49. In a January 1999 STR, the Veteran stated that he was injured while playing touch football, when he fell towards another player and was hit in the head/ face by a knee. The Veteran reported losing consciousness (LOC) for 2-3 minutes. The Veteran had short term memory loss and could not remember playing football. See STR-Medical, p.71; 75. The next day, the Veteran was seen for the concussion due to the injury from playing football. The Veteran was given a CAT scan that was normal. He had no significant intracranial injury and felt much better. However, the Veteran did have a headache in the temporal region. The clinician also did a cranial nerve check which came back normal. The Veteran was given a diagnosis of concussion syndrome. See November 2013 STR-Medical, p.73. In a May 2000 report of medical history discharge examination, the clinical evaluation revealed a normal head, face and scalp and neurologic system. In addition, the Veteran stated that he was in fair health. The Veteran denied in the past or present having frequent or severe headaches. The physician noted that the Veteran did have head trauma in-service, but the injury resolved. See November 2013 STR-Medical, p.65-66,83. In an October 2008 application for compensation and pension, the Veteran reported that he had suffered a concussion while in-service. The Veteran stated that, after the concussion, he constantly had headaches and his vision became a problem. See October 2008 VA 21-526 Veterans Application for Compensation or Pension, p.6-7. During an August 2009 VA treatment visit, the Veteran reported that he had a five year history of headaches. He stated that the left frontal pressure headache occurred every 1-2 days not related to his vision issues but noted mild nausea. The Veteran denied the headaches caused him to wake up from his sleep. He did indicate he had a concussion approximately ten years prior during his military service, and noted a history of a head laceration approximately three years prior. The clinician also noted that the Veteran had not sought routine treatment for his headaches. The Board acknowledges that the Veteran’s own account during this visit seem to point to the fact that his headaches were not caused by service because as he stated the injury occurred 10 years prior to this visit and he only reported a five year history of headaches (approximately 2004, he left service in May 2000) and had not obtained any routine treatment for headaches since he left service. See August 2016 Capri, p.5. In October 2016, the Veteran was afforded a residuals of Traumatic Brain (TBI) VA examination. The examiner noted that the Veteran was diagnosed with a TBI in January 1999. The Veteran reported that he suffered a TBI while playing football in-service. The Veteran stated that he did not recall event and a CAT scan revealed no physical injuries to the head. Although, in a 2009 VA treatment record he stated that he had been having headaches for only five years, he reported during this examination that he had been having headaches since 1999. The examiner noted that the Veteran had no complaints of impairment of memory, attention, concentration or executive functions; normal judgement; social interaction was appropriate; he was always oriented to person, time, place and situation; motor activity was normal; his visual spatial orientation was normal; he did not report any subjective symptoms of TBI; he had normal consciousness; no neurobehavioral effects and was able to communicate by spoken and written language. The Veteran did not have any residuals of a TBI and the condition did not impact his ability to work. The examiner found that the Veteran’s diagnosis of TBI to include headaches was at least as likely as not incurred in or caused by a head injury with brief loss of consciousness in-service; because based on the review of the Veteran’s file there were no residuals of the mild TBI by the time he separated from service. And no residuals of the TBI were identified at the time of the exam. The examiner indicated that the Veteran had migraine headaches but there was no evidence of a headache disorder. The examiner indicated that the headache documented in November 1996 was related to an upper respiratory infection but not a headache disorder. Also, the examiner noted that in an August 2009 VA treatment record, the Veteran stated the onset of his headaches was 2004, several years after the mild TBI. Therefore, it was less likely as not the Veteran’s headaches were residuals of a remote mild TBI history. In October 2016, the Veteran was also afforded a headaches VA examination. The examiner noted the Veteran had a diagnosis of migraine headaches including migraine variants, diagnosed in 2016. The Veteran reported the onset being 1999 when he was injured in a touch football game, while in-service. He described the headaches as the left frontal lobe throbbing, associated with nausea and photophobia. The Veteran stated he had three per week, that last two hours. The migraines did not impact the Veteran’s ability to work. The examiner found it was less likely as not the headaches were residuals of the remote mild TBI history; because there was no evidence of a primary headache disorder while he was on active duty and the Veteran noted in an August 2009 VA treatment record that the onset of his headaches were five years prior (2004), which was several years after the mild TBI. In September 2019, an addendum opinion to the October 2016 VA examination was provided. However, the examination opinion did not comply with the April 2018 remand instructions. The examiner was supposed to clearly state whether the Veteran’s headaches were or were not caused by his in-service injury. Instead the examiner repeated the same mistake and provided both a positive and negative nexus opinion. The examiner found the condition claimed was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale given was that the Veteran did sustain a mild traumatic brain injury, but the headaches and post concussive symptoms had resolved by separation. The examiner pointed out as mentioned in his October 2016 opinion, that no residuals were identified from the remote mild TBI. He stated prior to the TBI in-service the Veteran had headaches that did not represent a primary headache condition such as migraine. The examiner then provided a negative nexus stating that the Veteran’s complaints of headaches in 2016 were less likely as not secondary to active duty service or the mild TBI in-service. However, in August 2019, the VA examiner submitted clarification of his findings through an email. The examiner stated that it was less likely than not the condition was related to active duty service or secondary to the remote mild TBI. The examiner stated that the Veteran’s mild TBI in 1996 associated with headaches had resolved and there were no residuals by the time of his discharge in 2000. The examiner further noted that the claim of headaches in 2016 onset began after service. In February 2021, the Veteran was afforded another VA examination. The examiner reviewed the claims file, considered the Veteran’s accounts, and opined that it was less likely than that the Veteran’s headaches were related to the prior TBI or headaches while in-service. The examiner noted that the Veteran obtained a TBI in January 1999 and had headaches, but the Veteran was doing better the next day and resumed activities as of February 18, 1999 and was seen for an unrelated condition with no evident residuals of the prior mild TBI. In addition, the examiner noted that the Veteran’s separation examination was negative for headaches or memory loss associated with a head injury. The examiner also stated that the Veteran claimed onset at the time of the TBI with continuity since service, but in August 2009 the Veteran provided a five-year history of headaches. The examiner indicated that the Veteran more likely than not had a TBI in-service with resolution without residuals by the time of separation and a new condition in 2004 and was diagnosed with migraines. The examiner stated any headache condition arising from a TBI would have occurred at the time and would not manifest five years later. In addition, the examiner stated that migraines were a vascular phenomenon and there was no evidence of a chronic headache condition until around 2004. In this case, the Veteran has a current diagnosis of migraine headaches and evidence shows that he did have a mild TBI in-service. However, the Board finds that the claimed concussion residuals with headaches did not have its onset in service and is not otherwise caused by such service, to include the claimed incident involving the January 1999 injury the Veteran obtained from playing touch football. In reaching that conclusion, the Board has considered the Veteran's current contentions that he has experienced ongoing headaches and continued symptoms since service. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to ongoing symptoms following service including the January 1999 injury are inconsistent with the contemporaneous lay and medical record. Specifically, the Veteran reported in August 2009 that he began having routine headaches five years prior, which would have been 2004, years after the 1999 injury. In addition, at separation, the clinical evaluation revealed normal head, face, scalp, and neurologic system. The Veteran also denied ever having frequent and severe headaches and the examiner noted that the Veteran did have a head injury in-service, but it had resolved. In light of the foregoing, the Board finds his representations as to symptom onset and continuity of symptoms from service to be less probative. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In this case, however, the Veteran specifically denied a history of frequent or severe headaches at separation and, in August 2009, verbally indicated that he had a five-year onset of headaches, which would go back to 2004, years after his June 2000 discharge from active duty service. Had the Veteran been experiencing ongoing neurologic problems, the Board finds it reasonable to conclude that he would have reported these problems during his multiple opportunities during service and continuously from his active duty discharge. Instead, however, the Veteran specifically denied a past head injury or associated symptoms. The foregoing calls into question whether the claimed incident was of the severity of the Veteran's symptoms in the immediate aftermath of the incident. As such, the Board finds the Veteran's current representations significantly outweighed by the contemporaneous evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, Associate 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.