Citation Nr: 22068167 Decision Date: 12/12/22 Archive Date: 12/12/22 DOCKET NO. 15-14 385A DATE: December 12, 2022 ORDER Service connection for a chronic headache disorder is denied. The appeal for entitlement to special monthly pension (SMP) based on the need for aid and assistance of another person is dismissed. FINDINGS OF FACT 1. Clear and unmistakable evidence establishes that the Veteran's chronic headache disorder, diagnosed as migraine headaches, pre-existed service and was not aggravated beyond the natural progression therein, and such disorder is not shown to be caused or aggravated by service-connected fibromyalgia. 2. The Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the entire appeal period, which is a greater benefit than special monthly pension based on the need for aid and assistance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a chronic headache disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310. 2. The appeal for entitlement to SMP based on the need for aid and assistance of another person is moot. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to July 1992, with service in Southwest Asia from September 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2012 by a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2019 and August 2020, the Board remanded the issues on appeal, as well as claims for service connection for diabetes mellitus, a kidney disorder, and a skin disorder, and entitlement a TDIU, for additional development. While on remand, an August 2020 rating decision awarded a TDIU as of September 29, 2010, and October 2020, January 2021 and September 2022 rating decisions awarded service connection for diabetes mellitus, diabetic nephropathy, and pseudofolliculitis barbae, and an earlier effective date of March 12, 2010, for the award of a TDIU. As such are a full grant of the benefit sought on appeal with respect to these issues, to include the Veteran's claim for a TDIU as such has been awarded for the entire appeal period, they are no longer before the Board. Grantham v. Brown, 114 F3d 1156 (Fed. Cir. 1977); Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). 1. Entitlement to service connection for a chronic headache disorder, to include as due to exposure to environmental hazards or as secondary to service-connected fibromyalgia. The Veteran seeks service connection for a chronic headache disorder. He asserts that his headaches are due to his military service, to include exposure to environmental hazards coincident with his service in Southwest Asia, or in the alternative, are secondary to his service-connected fibromyalgia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995) Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). In this case, there is an initial question as to whether the Veteran's chronic headache disorder pre-existed his military service. In this regard, on his May 1983 Report of Medical History for enlistment, he checked "yes" to having had frequent or severe headaches and, in the explanation section, it was noted that he had mild headaches. However, the Veteran's May 1983 enlistment examination is absent any notations of any defects, infirmities, or disorders pertaining to headaches. Thus, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Consequently, there must be clear and unmistakable evidence that it both pre-existed service and was not aggravated in service. Id; Wagner, supra. The Veteran's service treatment records reflect that, in April 1987, he sought treatment for headaches. He reported no head trauma in the prior week, but indicated that his headache had a duration of more than five days. He described his headaches as lasting from 2 to 6 hours, off and on for approximately a month, with constant throbbing. He indicated the headache moved around his frontal region and he felt like he was "being stressed." The Veteran reported that any pressure on his head would bring pain from that area and that Tylenol was not working. A February 1988 record indicates that the Veteran reported severe headaches two times a week, for which he was taking medication. He was assessed with tension/stress headaches. A July 1988 record reflects that the Veteran sought treatment for a headache that had a duration of 5 days. It was noted that he had a history of headaches since 8 years old. Such record refers to the February 1988 entry and notes that he was assessed with tension headaches and stress and prescribed Motrin. The assessment was rule out tension/stress headaches. A September 1988 record indicates the Veteran complained of a severe headache since he was hit in the head during football training, with the treatment note reporting that he knocked heads with another player. In October 1989, the Veteran complained of having a headache for the prior 2.5 weeks. A partially illegible entry, dated August 1990, again notes that the Veteran was seeking treatment for headaches. It was noted that he had a history of migraine headaches since age 8. Such record indicates that the Veteran reported his headaches were exacerbated by hot sun and fuel fumes and had increased in frequency lately. He was advised to continue Motrin. An undated entry indicates the Veteran complained of a headache above the eyes for four days. It was noted he had a history of migraines for 12 years. A June 1992 record reported frequent headaches. However, an undated separation examination did not note any headaches. After service, the Veteran was afforded a VA examination in May 1995, at which time he reported experiencing intermittent localized headaches since hitting his head during service. The examiner stated the Veteran reported a history of increased frequency and severity of pre-existing migraine headaches since his head injury, with headaches occurring approximately once or twice monthly, lasting approximately four to five hours in duration. He was assessed with migraines. No etiological opinion was provided. The Veteran was afforded a VA examination in March 2000. At such time, he denied a history of head injury. The Veteran described different kinds of headaches. He described the more severe headaches as having intense, throbbing pain, that begins in the frontal area and then becomes generalized when he lies down. The headache then becomes unilateral on the side which he is lying down. It was noted that Motrin and staying quiet in a dark room relieves these headaches, although they may last up to three days. These headaches were associated with photophobia, nausea and blurred vision and occurred twice a month, but, when he was under stress they occurred more often. He also described a different type of headache, which he indicated consisted of a sharp pain above the left eyebrow for 30 seconds and had been occurring for the last three years. In an April 2011 statement, the Veteran indicated he was exposed to nerve agent and sarin gas during service. A VA medical opinion was obtained in May 2012. At such time, the VA examiner noted that, although the enlistment examination did not note migraines, further records document that the Veteran had similar migraines since the age of 8. The examiner noted that periodic headaches are documented in the service treatment records; however, found that there was no current objective evidence that the Veteran's pre-existing migraines were aggravated beyond their natural progression by either his environmental exposures during deployment to Southwest Asia or otherwise by his military service. The examiner stated that, furthermore, there is no objective evidence of any additional headache disorder having an onset during service. In this regard, he stated that, although headaches are caused by some of the chemicals listed among the environmental exposures of Southwest Asia, the current medical literature does not yet support a cause and effect relationship between these exposures and migraines occurring/persisting years following removal from exposure. At the November 2018 Board hearing, the Veteran testified that his headaches occur at least once or twice a month, depending on the stress or pain he is having. He stated that he experienced headaches prior to service, but they were different than those he had during service. He testified that he believed his headaches became worse during service as a result of exposure to petroleum and fumes. The Veteran also testified that he believes his headaches are caused or aggravated by his fibromyalgia. Thereafter, the Veteran was afforded a VA examination in March 2020. At such time, it was noted that he has headaches of the frontal lobe and has been seen by a physician for the last 20 years for treatment. The examiner noted that, at the time, the Veteran is diagnosed with migraines caused by frontal neuralgia. The Veteran reported a pounding and pulsating headache to the right side of the eye and temporal lobe. He reported headaches 3-4 times a week that cause him an inability to function for 3-4 hours. The examiner opined that the Veteran's migraines are not caused by his fibromyalgia, explaining that such are caused by frontal neuralgia, while fibromyalgia is a condition that affects muscles, tendons, and joints. In an October 2020 addendum VA opinion, the examiner opined that the Veteran's migraines clearly and unmistakably existed prior to service, as records indicate that they were, in fact, diagnosed prior to service. She further opined that the headaches were clearly and unmistakably not aggravated beyond the natural progression during service. The examiner explained that migraines by nature wax and wane, and a temporary worsening or increased frequency of migraines is common and does not represent aggravation. She further opined that the Veteran's migraine headaches are not aggravated by his fibromyalgia. In this regard, the examiner noted that the current state of knowledge around migraines suggests that such are caused by a primary neuronal dysfunction, which includes both a genetic component and a hormonal component. Thus, she concluded that these etiologies are not subject to aggravation by other conditions/symptoms. Another addendum VA opinion was obtained in March 2022. Similar to prior opinions, the examiner stated that the Veteran's migraine headaches were noted to be diagnosed prior to service, and therefore, the evidence does not support that they had their onset in, or were otherwise related to his military service, to include exposure to environmental toxins coincident with his service in the Persian Gulf and/or his documented in-service treatment for headaches. The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's chronic headache disorder, diagnosed as migraine headaches, pre-existed service. As noted, he testified that his current headaches had an onset during service; however, the contemporaneous evidence indicates the Veteran himself reported an onset and diagnosis of migraines prior to service, while seeking treatment for his headaches during service. The Board notes that statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care. See Fed. R. Evid. 803 (4) and accompanying Notes (noting statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate); Caluza v. Brown, 7 Vet. App. 498 (1995). Furthermore, all medical opinions of record have indicated that the Veteran's headaches had an onset prior to service and clearly and unmistakably pre-existed service. The Veteran has not submitted any medical opinions to the contrary and no evidence, other than his own lay statements, which are afforded less probative weight due to the fact that they are contradicted by the contemporaneous evidence, that indicate that his headaches did not pre-exist service. As such, the Board finds that there is clear and unmistakable evidence that the Veteran's headaches pre-existed service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence that "there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the pre-existing condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In the instant case, the Board finds that there is clear and unmistakable evidence that the Veteran's headaches were not aggravated during service. In this regard, the Board notes that the Veteran continued to experience headaches during service, and he reported they increased in severity and frequency therein. He is competent to report a perceived increase in severity and frequency of headaches. However, the medical opinions of record reflect that these were temporary or intermittent flare-ups and do not represent a worsening of the underlying condition. The May 2012 VA examiner specifically noted that periodic headaches were documented in the service treatment records; however, there was no current objective evidence that the Veteran's pre-existing migraines were aggravated beyond their natural progression by either his environmental exposures during deployment in Southwest Asia or otherwise by his military service. The examiner also stated there is no objective evidence of any additional headache disorder having an onset during service. The examiner acknowledged that, although headaches are caused by some of the chemicals listed among the environmental exposures of Southwest Asia, the current medical literature does not yet support a cause and effect relationship between these exposures and migraines occurring/persisting years following removal from exposure. The Board finds the VA physicians' opinions to be highly probative because they had the appropriate training, expertise, and knowledge to evaluate the claimed disability. Therefore, the probative and persuasive evidence of record indicates the Veteran's pre-existing headaches were not aggravated beyond a natural progression during service. There are no medical opinions to the contrary. Additionally, the evidence of record indicates the Veteran's headaches are not proximately due to or aggravated by his service-connected fibromyalgia. The highly probative medical opinions of record note that the Veteran's headaches are caused by a primary neuronal dysfunction, which is not related in any way to fibromyalgia and not subject to aggravation by other conditions/symptoms. After thorough consideration of the evidence of record, the Board concludes that service connection is not warranted for a chronic headache disorder, to include on a secondary basis. The Veteran's assertions and lay statements are the only evidence of record indicating his headaches were aggravated during service or are secondary to his service-connected fibromyalgia. There are no medical opinions or probative evidence of record suggesting that the Veteran's headaches were aggravated during service or are secondary to a service-connected disability. In this regard, the Veteran is competent and credible to describe the symptoms of his headaches. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he has not been shown to have the requisite knowledge or training to render a medical opinion or identify the etiology of such condition. While lay persons are competent to provide opinions on some medical issues, determining the cause and nature of a complex condition such as a chronic headache disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board acknowledges the Veteran's arguments; however, as noted, these assertions and arguments do not persuasively show a link between his headaches and his service or a service-connected disability. Rather, the probative medical opinions indicate that the Veteran's headaches pre-existed service and were not aggravated during service and are not secondary to a service-connected disability. In this regard, as previously noted, there are no medical opinions to the contrary of record. The Veteran had the opportunity to submit a medical opinion to substantiate his claim, but none were submitted in support of his claim. The Board is not free to ignore the medical opinions of record and substitute its own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). For the reasons stated above, the Board finds that the weight of the probative evidence is against the claim of entitlement to service connection for a chronic headache disorder. Thus, there is no doubt to be resolved and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to SMP based on the need for aid and assistance of another person. The Veteran seeks entitlement to SMP based on the need for aid and attendance of another person. In this regard, disability pension will be paid to a veteran of a period of war who meets statutorily defined service, net worth, and annual income requirements, and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct. 38 U.S.C. §§ 1502, 1503, 1521. Section 1521 further provides for an increased rate of pension, in the form of a SMP, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C. §§ 1521(d), (e); see also 38 C.F.R. § 3.351. The purpose of VA pension benefits is to provide a subsistence income for certain veterans who are otherwise unable to maintain a basic, minimal income level. 38 U.S.C. §§ 1521, 1522. The statutory scheme generally provides that a veteran who has been awarded compensation for service-connected disability cannot receive pension at the same time. If a veteran is entitled to both service-connected compensation and pension benefits, "[t]he greater benefit will be awarded, unless the claimant specifically elects the lesser benefit." 38C.F.R. §3.151 (a). Here, the Veteran filed a claim for SMP based on the need for aid and attendance of another person in November 2010. However, he has been awarded service connection for 17 disabilities, resulting in a 90 percent disability rating from January 2010 and a 100 percent disability rating from September 2010. Furthermore, a TDIU was granted and is also in effect for the entire period on appeal, from March 12, 2010. Additionally, the record indicates the Veteran is being paid as a single veteran with no dependents. See September 2022 notification letter. An award of SMP is less than the amount of compensation the Veteran receives for a TDIU. For example, under 38 U.S.C. § 1521, if the veteran met the requirements for SMP based on the need for regular aid and attendance of another person, the highest amount payable, currently, would be $19,736 annually. This amount, when divided into 12 monthly payments, amounts to approximately $1,644 per month. However, 38 U.S.C. § 1114(j) provides that monthly compensation for total service-connected disability (100 percent or a TDIU) "shall be $2,673," which is approximately an annual rate of $32,076. Therefore, the compensation benefit is greater than the potential pension benefit. As such, the Veteran's claim for SMP is rendered moot from the time that his total rating has been in effect, i.e., March 2010, which encompasses the entire current appeal period. There is no indication in the record that the Veteran seeks to elect to receive a lesser amount of benefits. Moreover, on any claim for benefits, claimants are presumed to be seeking the maximum benefit possible. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veteran has been awarded the greater benefit for the entire period on appeal, there remains no case or controversy with regard to his claim for SMP based on the need for aid and attendance of another person, and the appeal with respect to such issue is dismissed. 38 U.S.C. § 7105(d)(5). A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.