Citation Nr: 21028072 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-09 701 DATE: May 10, 2021 ORDER Service connection for residuals of a head injury, to include tension headaches, is granted. FINDING OF FACT The preponderance of competent evidence tends to show that it is at least as likely as not that the Veteran's residuals of a head injury, to include tension headaches, was incurred during or as a result of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a head injury, to include tension headaches, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to November 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In January 2018 the Board remanded the issue on appeal for further development. In August 2020 the Board again remanded the issue on appeal for the Agency of Original Jurisdiction (AOJ) to obtain the service treatment records from the Veteran from June 1989 to September 1989. Additionally, the AOJ was directed to provide the Veteran's claims file to a qualified examiner to determine the etiology of the Veteran's residuals of a head injury. Further, the examiner was directed to address the Veteran's lay statements about his head injuries during service and the lay statements from the Veteran's family members. After a February 2021 SSOC considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. The AOJ received notice that all available Veteran's service treatment records were already part of the claims file; therefore, further attempts to obtain them would be futile. Additionally, the Veteran was provided with a VA examination. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for residuals of a head injury, to include tension headaches. The Veteran contends service connection for residuals of a head injury that happened in-service. At the outset, the Board notes that the Veteran has a diagnosis of tension headaches. See 2/23/2021 C&P Examination. Additionally, the Board notes that the Veteran has claimed a cognitive impairment, such as memory loss due to the in-service head injury. See 5/30/2020 VA 21-4138. However, competent findings of such impairment have not been observed during the appeal period. Thus, there is no competent and probative evidence to support a diagnosis of a cognitive impairment as a residual of the in-service head injury. However, the tension headaches diagnosis satisfies the first element of service connection in this instance. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the Veteran submitted several statements in which he reported that he injured his head in two occasions during service. The Veteran reported that he injured his head in Fort Jackson, South Carolina in September 1989. Additionally, the Veteran's father and brother stated that they went to pick the Veteran up in South Carolina after he hurt his head during basic training and that the Veteran complained of headaches since that time. Further, the Veteran reported that while he was driving a M113 in Iraq, the driver's hatch came loose and struck his CVC helmet and cracked it. Further, he reported that he suffered headaches and memory issues after the aforementioned head injuries, onward. See 2/8/2010 VA 21-4138; see also 5/30/2020 VA 21-4138; 5/30/2020 Buddy / Lay Statement. The Board finds the Veteran to be credible in describing his in-service incident as it is consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran's lay reports of symptoms). Thus, the second element of service connection is also met. The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's current eye disability and service or to a service-connected disability. The Veteran underwent a VA traumatic brain injury examination in January 2017. The examiner reported that the Veteran did not have a traumatic brain injury or a cognitive impairment. However, the examiner did not render an opinion as they requested to see the Veteran's clinical separation examination report. See 1/6/2017 C&P Examination; see also 6/12/2019 C&P Examination. After the January 2018 Board remand, in February 2020 the Veteran was afforded another VA examination. The examiner rendered a negative opinion and stated that the headaches that developed two years after the Veteran's head injury were due to sinusitis and that his subjective memory issues were due to psychiatric disorders. See 2/3/2020 C&P Examination. The Board finds this opinion inadequate. The examiner did not address the Veteran's contentions that he suffered from headaches since his head injuries, onward. The most recent VA examination was performed in February 2021. The Veteran was diagnosed with tension headaches. The examiner rendered a negative opinion and reported that the Veteran had two head injuries, which resulted in post-concussion headaches. Additionally, the examiner reported that the Veteran's headaches developed two years after his head injury and were due to sinusitis, and the examiner cited two articles to support that post-concussion symptoms develop quickly. See 2/23/2021 C&P Examination. However, the Board finds this opinion inadequate. The examiner did not address the Veteran's contentions that he suffered from headaches since his head injuries, onward. Further, although the examiner opined that post-concussion symptoms develop quickly, he did not address how this information answers the question if the disability was related to service for this specific Veteran. Based on the above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran's residuals of a head injury, to include tension headaches, began and has continued since service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303, 3.309. The Board has considered the totality of the evidence, to include the Veteran's competent lay statements and other supporting competent lay evidence regarding their first-hand observations. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). In short, service connection for residuals of a head injury, to include tension headaches, is therefore warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.