Citation Nr: 21041974 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-15 852A DATE: July 10, 2021 ORDER TO VACATE On December 2, 2020, the Board issued a decision denying service connection for a headache disorder. The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In March 2021, the Veteran's representative submitted correspondence arguing that the Veteran had been denied due process because he did not receive notice of certification of the Veteran's appeal of the denial of his claim of entitlement to service connection for a headache disorder until December 9, 2020, after the Board issued its decision on December 2, 2020. Given that neither the Veteran nor his representative was notified of the certification of his appeal of the denial of his claim of entitlement to service connection for a headache disorder, the Board finds that its denial of service connection for a headache disorder in the December 2, 2020 decision should be vacated. Accordingly, the portion of the December 2, 2020 Board decision that denied entitlement to service connection for a headache disorder is vacated and replaced by this decision. ORDER Service connection for a headache disorder is denied. FINDING OF FACT The Veteran's headache disorder was not shown in service or for many years thereafter, is not otherwise etiologically related to active duty service or his service-connected back disability, and has not been aggravated beyond its natural progression by his service-connected back disability. CONCLUSION OF LAW The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to May 1988 and September 2002 to August 2003. Service Connection Under the relevant laws and regulations, 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, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Additionally, service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for a headache disorder The Veteran contends that service connection for his headache disorder is warranted because his back disability and mental health disorder have caused and/or permanently aggravated his headache disorder. Initially, the Board finds that the Veteran's service treatment records fail to establish that a headache disorder was incurred in or is otherwise etiologically related to his active duty service. Specifically, his service treatment records fail to establish that his headache disorder was incurred in or is otherwise etiologically related to his active duty service because they do not reflect that he sought treatment for, reported signs or symptoms of, or was diagnosed with a headache disorder. The post-service clinical evidence also fails to establish a relationship between the Veteran's headache disorder and his active duty service. Although a March 1999 report of medical history, completed by the Veteran when he was not on active duty, reflects that he reported frequent or severe headaches, his treatment records do not reflect that he sought treatment for a headache disorder until July 2010, nearly seven years after his separation from service. In fact, a December 2009 treatment record reflects that he did not experience headaches. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. The Board acknowledges the statements by the Veteran and his wife regarding the history of his symptoms of a headache disorder. Although the Veteran and his wife are competent to report that he has experienced symptoms of a headache disorder, they are not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed Cir. 2007). Nevertheless, to the extent the Veteran and his wife contend that these disorders were caused by his service and have persisted since service, the Board determines that the reported history is not probative in establishing the nexus element because, as set forth above, the clinical evidence shows a significant gap between his separation from service and when he sought treatment for a headache disorder and shows that he denied headaches in December 2009. The gap in treatment and denial of symptoms after his separation from service weighs against the credibility of the Veteran and his wife in asserting that he has experienced continuous symptoms of a headache disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). The Board also notes that prior to filing his claim seeking service connection for a headache disorder, the Veteran filed a claim seeking service connection for a back disorder in July 2008. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out benefits for a back disorder, but made no reference to a headache disorder weighs against the credibility of his contention that his symptoms of a headache disorder have persisted since active duty service. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's headache disorder to active duty service, despite his contentions to the contrary. The Board initially notes that there is no objective medical evidence linking the Veteran's headache disorder to an event during his active duty service. Next, the Board places significant probative weight on the report from the October 2020 VA examination. There, the examiner opined that the Veteran's headaches were not at least as likely as not aggravated beyond their natural progression by his service connected back disorder. In support of that opinion, the examiner explained that common forms of migraines are complex genetic disorders, with multiple genes at different genomic sites that act in tandem with environmental factors to confer both the susceptibility to and the characteristics of the disease in affected individuals, but low back pain does not cause or aggravate migraine headaches. Given the examiner's citation to medical literature, review of the claims file, in-person examination, and expertise, the Board finds that the examiner's opinion is entitled to significant probative weight. The Board acknowledges that an August 2020 private opinion reflects that a private physician opined that it was at least as likely as not that the Veteran's service-connected back pain, and his mental health symptoms cause and permanently aggravate his headache disorder. The physician indicated that his opinion was based upon a review of the Veteran's claims file, medical records, and a consultation with him. The physician supported his opinion by explaining that medical evidence supports a link between psychological stress and headaches. The physician also stated that a study of 20 subjects showed that the nine subjects with low back pain had an altered brain chemistry and that there was a specific interrelationship between regional chemical and perceptual measures of pain and psychological symptoms. Given the relationships between pain and psychological symptoms and psychological symptoms and headaches, he reasoned that the Veteran's back disorder caused or aggravated his headache disorder. The Board finds that the private physician's opinion is not probative in this case because the link that he finds between the Veteran's back disorder and his headaches is based on psychological symptoms that are caused by pain. The Veteran has not been granted service connection for an acquired psychiatric disorder. Accordingly, his opinion lacks probative weight and does not establish that it is at least as likely as not that his headache disorder has been caused and/or aggravated by his back disability. In arriving at its conclusion, the Board has also considered the statements made by the Veteran and his wife relating his headache disorder to his active duty service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran and his wife are not competent to provide testimony regarding the etiology of his headache disorder. See Jandreau, 492 F.3d at 1377, n.4. Although they can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran and his wife believe that his headache disorder is related to service, they are lay persons without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that service connection is not warranted for the Veteran's headache disorder. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel