Citation Nr: 21032890 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-57 223 DATE: May 28, 2021 ORDER Entitlement to service connection, to include on a secondary basis, for headache condition is denied. REMANDED Entitlement to an initial rating in excess of 30 percent disabling for posttraumatic stress disorder (PTSD) prior to July 10, 2020, and in excess of 50 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran does not have a headache condition that originated in service, within a year of service, or otherwise etiologically related to his active service; or as secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for headache condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1950 to October 1953, with additional service in the Iowa Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2020, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. During the pendency of the appeal, a July 2020 rating decision granted an increased rating for PTSD of 50 percent, effective July 10, 2020. As this rating is not the maximum allowable, that issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that these claims were previously remanded in May 2020. In November 2020, the Board remanded the claims again. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Headache Condition The Veteran seeks entitlement to service connection for a headache condition. Specifically, the Veteran asserts that he began experiencing headaches during service following exposure to an exploded mortar, and that he had experienced headaches since that time. See May 2015 VA Form 21-4138, Statement in Support of Claim. Alternatively, the Veteran asserts that his headache condition is secondary to his service-connected PTSD. See March 2020 Board Hearing Transcript. Initially, the Board notes that the Veteran's service treatment records (STRs) are incomplete. In this regard, in January 2006, VA issued a Formal Finding of the Unavailability of Service Records memorandum noting that the STRs were destroyed in a fire and could not be reconstructed. The memorandum also noted that the Veteran was unable to provide any STRs in his possession, and that all efforts to obtain his STRs had been exhausted. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The record does contain the Veteran's October 1953 separation examination in which the clinician noted no defects, diagnosis, or any other medical history except for usual childhood diseases with no complications. The examination did not indicate the Veteran had reported the presence of headaches. Thereafter, a December 2001 VA medical record shows the Veteran denied any headaches. See VA Medical Records Received October 2005. Additionally, a December 2001 VA general medicine record also noted the Veteran did not have any headaches. See VA Medical Records Received October 2016. The Veteran again denied having headaches in May 2003. In May 2005, a VA medical record noted no significant history of excessive headaches. See VA Medical Records Received October 2016. The Veteran underwent a rheumatology consultation in February 2012 during which he stated he had not had any headaches in the past. See VA Medical Records Received October 2016. In an October 2012 Statement in Support of Claim, the Veteran asserted that approximately 2 to 3 months after separation from service, he had one of the worst headache pains. He also reported intermittent headaches since that time and that he had been treated at hospital, but that a cause of the headaches could not be determined. A December 2012 VA general examination report shows that the Veteran did not endorse having headaches. He also denied having any headaches in January 2015. See VA Medical Records Received October 2016. In a May 2015 Statement in Support of Claim, the Veteran asserted that while he was in Korea, the concussion from a mortar shell caused him to hit his head, neck and shoulders, and that he was knocked unconscious. Ever since that time, he reported having headaches 5 to 7 times per week. In addition, he reported being treated at a hospital in 1954 for headaches. In April 2016, a neurology assessment shows the Veteran denied having headaches. Another April 2016 VA medical record shows he reported having headaches when his blood pressure became high. May and June 2016 VA medical records show he denied having any headaches. Another June 2016 VA medical record noted the Veteran did not have headaches. See VA Medical Records Received October 2016. The Veteran underwent a VA headache examination in October 2016. The examiner opined that it was "less likely than not (less than 50% probability)" that the Veteran had a headache condition etiologically related to service. In support of this opinion, the examiner stated that a review of the medical evidence of record evidenced no diagnosis or treatment for chronic, recurrent or severe headaches. A September 2018 VA medical record shows the Veteran denied any severe headaches. He did complain of a headache, but was unsure whether it was a new symptom related to high blood pressure. See VA Medical Records Received January 2019. A March 2019 VA hypertension assessment noted no headaches. February and April 2020 VA medical records noted the Veteran denied having any severe headaches. See VA Medical Records Received November 2020. At a March 2020 Board hearing, the Veteran testified that he first experienced headaches in 1953 following his discharge from service, and that he had had intermittent headaches since that time. A May 2020 VA psychology record shows the Veteran reported having been denied service connection for headaches, and that he had not realized he had filed any such claim. See VA Medical Records Received November 2020. In a June 2020 VA examination report, the examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran had a headache condition etiologically related to service. In support of this opinion, the examiner noted that there was no chronic headache diagnosis, that the objective examination was normal, and that symptoms were only subjective. Accordingly, a nexus was not found to have been established. Specifically, the examiner noted that the Veteran's separation examination was silent for any complaints of headaches, and that there was no medical evidence showing a headache condition after separation from service. In this regard, cited VA medical records were noted as documenting the absence of any complaints or concerns regarding a headache condition. The only record noting complaints of headaches was an April 2016 VA medical record in which the Veteran reported having headaches when his blood pressure was high and that he was not sure if that was a new symptom. The Veteran also reported feeling stressed when his blood pressure was high. Accordingly, the examiner concluded the one documented complaint was an acute event. The examiner additionally opined that it was "less likely than not (50 percent or greater probability)" that the Veteran had a headache condition proximately due to or the result of a service-connected disability. In this regard, the examiner noted that the medical literature was inconclusive regarding PTSD causing or aggravating headaches. The examiner did recognize medical literature showing that those with PTSD had a higher likelihood of having headaches. However, the examiner noted that such literature did not show causation between PTSD and headache conditions. Accordingly, the examiner concluded that headache and PTSD conditions were not medically related. Therefore, the reported headache condition was found to be entirely separate from the PTSD. In support of this statement, the examiner again cited to medical literature which "failed to demonstrate a causal relationship." Additionally, the examiner noted the prevalence of headaches in the North American population. VA medical records dated June, September and October 2020 show the Veteran denied any new onset of headaches. See VA Medical Records Received November 2020. A February 2021 VA medical record shows the Veteran reported experiencing daily headaches since he received his first COVID-19 vaccination. See VA Medical Records Received March 2021. The Veteran last underwent a VA headache examination in March 2021. The examiner noted the Veteran did not have a diagnosed headache condition. The examiner did note previous reports of headaches with high blood pressure, and a headache due to stress on one occasion. The few headaches noted in the record were thereby found to be isolated events. Otherwise, the examiner noted that the claims file was otherwise silent for any complaints, diagnosis or treatment for headaches. In addition, the examiner noted the Veteran had reported being unaware he had filed a service connection claim for a headache condition. As no chronic headache condition had ever been diagnosed, the examiner noted there was no condition subject to any progression. In this regard, the examiner noted that while the service-connected PTSD had been an ongoing condition, his headaches had been isolated acute events, unrelated in time or situation to each other or any other condition such as PTSD. Based on a lack of reports or treatment for a headache condition, and statements of being unaware of having filed a service connection claim for headaches, the examiner concluded that no chronic headache condition could be confirmed. As such, a progression of a headache condition could thereby not be confirmed. Additionally, the examiner noted that medical literature did not support a causal relationship between PTSD and headaches, or any aggravating effects of PTSD upon existing headaches. Accordingly, the isolated acute headaches were found unrelated to and not affected by the service-connected PTSD. After a review of the evidence of record, the Board finds that entitlement to service connection for a headache condition is not warranted. In this regard, the Board finds that, throughout the period on appeal, the Veteran has not been diagnosed with a headache condition. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "'disability' pursuant to 38 U.S.C. § 1110 refers to the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." See also, Wait v. Wilkie, 33 Vet. App. 8 (2020). While the Board recognizes the Veteran's lay statements as to experiencing recurrent headaches since service, he has provided several conflicting statements in this regard. In his October 2012 Statement in Support of Claim, he asserted that he first began to experience headaches approximately 2 to 3 months after separation from service. He reiterated that fact during his March 2020 Board hearing. However, in his May 2015 Statement in Support of Claim, he asserted that he first began experiencing headaches during service following exposure to a mortar explosion, and that he had experienced 5 to 7 headaches per week since that time. The Veteran's lay statements as to the onset of his headaches are also directly contradicted by his VA medical records, which consistently show that he repeatedly denied having any headaches in December 2001. Importantly, in May 2005, a VA medical record shows he specifically denied any significant history of excessive headaches. More recently, a VA medical record and VA examination report shows the Veteran reported being unaware that he had filed a service connection claim for a headache condition. Accordingly, as the Veteran has provided several conflicting lay statements with regard to experiencing headaches and to the onset of any such headache condition, the Board provide his statements little probative value. Even if the Board were to consider the more recent complaints of experiencing headaches following a recent COVID-19 vaccination, the Board finds the cumulative VA examination reports the most probative evidence of record. In this regard, the Board finds the June 2020 and March 2021 VA examination reports considered the evidence of record, including the Veteran's lay statements. However, the examiner opined that it was "less likely than not (less than 50 percent probability)" that a headache condition was etiologically related to service. In support of this opinion, the examiner relied on the absence of any diagnosed chronic headache condition, the lack of documentation of a headache condition on the Veteran's separation examination, and numerous VA medical records documenting no complaints or concerns regarding any such condition. While recognizing the report of experiencing headaches with elevated blood pressure, the examiner found this one report evident of an acute event. With regard to secondary service connection, the examiner opined that it was "less likely than not (50 percent or greater probability)" that the Veteran had a headache condition proximately due to or the result of a service-connected disability. In this regard, based on a review of medical literature, the examiner found no evidence to support a finding of a causal relationship between PTSD and headaches. The examiner also based this opinion on a finding that the report of headaches in correlation to elevated blood pressure had been an isolated acute event, and, therefore, unrelated to the PTSD. Additionally, as the examiner found that the evidence did not support a finding for a chronic headache condition, no progression of any such condition could be confirmed. As noted above, the Board finds the Veteran's lay statement in this matter unreliable and thereby of little probative value. As such, the Board finds that the Veteran's lay assertions in the present case are outweighed by the cumulative June 2020 and March 2021 VA examination reports, all of which determined that the there was no nexus between the service connection claim for headaches and service, and which determined that the reported headache condition was not secondary to the service-connected PTSD, including on an aggravation basis. The examiner has training, knowledge, and expertise on which he relied to form his opinions, and, he provided a persuasive rationale. Importantly, there is no competent evidence to the contrary. In sum, the Board finds that all three Shedden requirements have not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a headache condition. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 2. Increased Rating - PTSD The Veteran last underwent a VA examination in July 2020. The diagnosed psychiatric disorder was found manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that the severity of his symptoms had remained the same since his previous VA examination. The following symptoms were noted: depressed mood; anxiety; suspiciousness; flattened affect; and, disturbances of motivation and mood. Memory was noted as average. Thought processing was found normal. Evidence added to the claims file following the July 2020 VA examination includes a March 2021 VA psychology record in which the Veteran's treating psychologist noted that he appeared to have developed a notable decline in memory function. The psychologist additionally noted the Veteran had become more paranoid and his thinking was more delusional. As symptoms of memory impairment, paranoia and delusional thinking were not found during the July 2020 VA examination, the March 2021 VA medical record evidences worsening symptoms. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, a remand is warranted for a new VA examination to determine the current nature and severity of the Veteran's service-connected PTSD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 3. TDIU Lastly, the claim for a TDIU is inextricably intertwined with the remaining claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. The examiner should review the evidence associated with the record. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's PTSD and specify the degree of occupational or social impairment. In particular, the examiner should note the March 2021 VA psychology record in which the Veteran's treating psychologist noted that he appeared to have developed a notable decline in memory function, had become more paranoid, and his thinking was more delusional. 3. Then, the AOJ must readjudicate the remaining issues on appeal, to include TDIU. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.