Citation Nr: 21040669 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-11 753 DATE: July 6, 2021 ORDER Entitlement to service connection for a headache disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's headache disability began during active service and has been continuous to the present. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a headache disability has been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1994 until her honorable discharge in March 1997, with additional service in the United States Naval Reserve. The Veteran served in Southwest Asia in support of Operation Desert Shield/Storm. The Board of Veterans' Appeals (Board) thanks the Veteran for her service to our country. This matter is before the Board on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Board remanded this matter in November 2020 to the Agency of Original Jurisdiction to afford the Veteran additional VA examination and medical opinion. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden that the nexus element three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). It is noted that competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claimant on its merits, the evidence must preponderate against a claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a headache disability is granted. The Veteran contends her current headache disability had its onset during military service and she has continuously experienced relevant symptoms since that time. Specifically, she asserts her headaches are secondary to Depo-Provera injections. Additionally, she served in the Southwest Asia theater of operations. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a headache disability, diagnosed as tension headache. See, e.g., March 2019 VA examination report and April 2021 QTC examination report. Review of the Veteran's post-service Gulf War Registry Program Worksheet shows the Veteran served in the Persian Gulf from October 1995 to March 1996, and Dubai. During the March 2011 examination she reported being exposed to smoke from oil fires, exposure to diesel and/or other petrochemical fumes, eating and drinking food contaminated with smoke, oil, or other chemical, and experiencing daily headaches. She described her health after her Gulf War service as "poor" with moderate functional impairment. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of a headache disability in service and since service separation. A review of the Veteran's service treatment records (STRs) fails to uncover any evidence she reported a headache disability during military service. Although the Veteran's STRs fail to show direct evidence of a headache disability, an absence of contemporaneous STRs documenting in-service complaints or treatment is not fatal to a claim for service connection. Savage v. Gober, 10 Vet. App. 488 (1997). A review of the Veteran's service treatment records (STRs) confirms the Veteran began receiving Depo-Provera (Contraceptive Injection) in March 1995. As noted on the Depo-Provera Contraception Documentation Sheet, potential side effects include headache, to migraine. In a March 2013 statement, the Veteran explained due to ongoing harassment from her supervisor she did not go to "sick call"; she just dealt with the pain and headaches. Regarding the Veteran's assertions she has experienced headache disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability, specifically pain. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza, 7 Vet. App. 498. Turning to the medical opinions of record regarding the etiology of the Veteran's headache disability, the Veteran underwent a VA headaches examination in March 2019. The examiner diagnosed tension headaches and provided a negative nexus opinion stating the Veteran's STRs are silent for chronic headaches. The examiner stated, although headache can be a side effect of Depo-Provera, this would be transient and would be expected to manifest around the timeframe of use and typically resolve. Finally, the examiner stated the medical literature does not show evidence of an etiological link between Gulf [War] exposures and tension headaches. In its November 2020 remand, the Board found the March 2019 examination to be inadequate in part because VA may not consider the absence of evidence as substantive negative evidence. See Horn v. Shinseki, 25 Vet. App. 231 (2012). Pursuant to the November 2020 Board's remand, a QTC headaches examination was conducted in April 2021. The Veteran reported a history of generalized headaches beginning in 1996. The examiner provided a negative nexus opinion finding there are no medical records showing a diagnosis, treatment for the headache condition, or any related headache condition while the Veteran was in the service. The examiner continued stating there are no findings related to oil fires, diesel and/or other petrochemical fumes, and contaminated food/water causing tension headaches. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Upon review, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's headache disability is related to her active service. 38 C.F.R. § 3.102. As noted, the March 2019 VA examination was found to be inadequate by the Board. Additionally, although the April 2021 QTC examiner found the Veteran's headache disability unrelated to service, the Board finds the opinion to be of diminished probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). In this regard, it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The examiner did not address the Veteran's competent and credible statements regarding in-service onset and continuity of her symptoms since service separation. Furthermore, a negative etiological opinion based upon the lack of evidence of complaints or treatment for symptoms in a Veteran's service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, as the opinion is not adequate, it does not assist the Board in resolving this claim and cannot serve as the basis of a denial of this issue. Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran's statements that she experienced a headache disability in-service and she continued to experience headache disability symptoms since service separation. Although there is no medical nexus opinion of record linking the Veteran's current headache disability to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with her headache disability and finds that she has done so. While the Veteran is not competent to report the etiology of her condition, her statements are competent evidence as to factual matters of which she has first-hand knowledge and the presence of observable symptoms; they are given greater probative weight. Layno, 6 Vet. App. at 469-70. The Board notes lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After careful review of the record, the Board finds the Veteran's headache disability had its onset in service and has continued since that time. Walker, 708 F.3d at 1338. The Veteran has competently and credibly indicated the onset of her headache disability during her military service and that she has continued to experience such symptoms since service. She is competent to report symptoms of a headache disability, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt her credibility. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, service connection for a headache disability is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.