Citation Nr: 22013554 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-24 853A DATE: March 9, 2022 ORDER Entitlement to service connection for a headache disability is denied. FINDING OF FACT The probative evidence does not establish that a headache disability had onset in service, is causally related to service, or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a headache disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. In a March 2020 decision, the Board, in pertinent part, denied service connection for a headache disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and, in pertinent part, vacated and remanded the portion of the March 2020 Board decision which denied service connection for a headache disability. In June 2021 and again in October 2021, the Board remanded the claim for further development. 1. Entitlement to service connection for a headache disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection also may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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). The Veteran contends that he has a headache disability that is related to the incident in service in December 1979 that resulted in his injuring his left eye and left arm. Alternatively, he contends that his headache disability is secondary to his service-connected eye disability (traumatic enucleation, left eye). At his December 2019 hearing, the Veteran testified that he has had many surgeries to his eye, and that the surgeries have "create[d] a lot of headaches and a lot of issues." The Board notes that the Veteran's recent written statements and testimony regarding the in-service incident are inconsistent with the objective evidence contained in his service treatment records. The service treatment records indicate that the Veteran was injured during service in Guam while riding in a vehicle in December 1979. As he was driving, a bottle thrown from a vehicle going in the opposite direction, shattered the Veteran's windshield and resulted in a left eye injury, facial lacerations, and a left arm injury. The Veteran now contends that the injury to his eye in service occurred when a "generator" exploded, causing metal to pierce his eye and arm, and causing a traumatic brain injury and headaches, as well as neck and back injuries. The Board recognizes that the Veteran is competent to report evidence within the realm of his personal knowledge, including the onset and continuity of symptoms. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds such reports to not be credible as they are internally inconsistent and inconsistent with his treatment records. The Board reiterates that the generator explosion incident report by the Veteran is not consistent with the contemporaneous record. The Veteran's report of a generator explosion resulting in a headache disability is not credible and is not afforded any probative value. A March 1981 service treatment record noted "post op retinal detachment repair left eye, patient with flashes of light and headaches." However, the medical board examination in November 1981, several months later, noted normal head and neurologic examinations. A VA examination conducted in July 1982 several months after service discharge also did not include any complaints related to headaches. In March 1989 the Veteran reported he had headaches. In October 1991 he was noted to have possible migraines. In September 2012 the Veteran reported he had experienced daily headaches since a TBI in February 2012. A May 2017 VA treatment record noted the Veteran was seen with a history of "mod-severe blast-related TBI and enucleation of L eye in 1979 as well as OEF/OIF blast related TBI with chronic HA with mixed migrainous/cervicogenic components." A VA examination was conducted in May 2014. The Veteran reported that he began having headaches continuously since his first head injury in 1979. These were reportedly "mild" initially "like a five" out of ten. He reported that since that time he has "always had sensitivity to sunlight." He recalled being given "alcohol blocks" in "84 or 85" for the head pain. Veteran reported that his headaches became severe around May 2012. The Veteran reported that his headaches are disabling once or twice per week. The examiner noted that "the severity of the above symptoms and complaints is purely based on his reported history. This history diverges greatly from the treatment records provided. The actual severity of his experienced headaches cannot be determined without resorting to mere speculation, but there are few complaints in this regard prior to 2012." The examiner stated that the "Veteran's reports of continuous headaches since his 1979 injury are not supported by the medical evidence in the service treatment or VA treatment records," and that the "Veteran's claimed Headaches are less likely as not (less than 50 percent probability) caused by or incurred in service." A VA examination in June 2021 diagnosed chronic headache with mixed migrainous/cervicogenic components. The examiner opined that the Veteran's headache disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that during service, the headache, was acute only. There is no evidence of chronicity of care and symptoms the claims file was silent for headache complaints until 1989. The examiner noted a few other sparse reports of headaches and observed that beginning in 2012 the Veteran was seen multiple times by specialists and diagnosed with tension type headaches, mixed tension/migraine type headache, chronic headaches, chronic headaches with mixed migrainous/cervicogenic components. The examiner further opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected traumatic enucleation of the left eye, to include surgical treatment thereof. The examiner explained that the conditions of headache and service-connected traumatic enucleation of the left eye, to include surgical treatment thereof are not medically related. The headache is a separate entity entirely from the service-connected traumatic enucleation of the left eye, to include surgical treatment thereof and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. A VA addendum opinion was provided in January 2022. The examiner opined that the Veteran's headache disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: There is no evidence of a headache condition related to the veteran's left eye enucleation. There is no evidence of a headache condition at separation. These exams are notably thorough and include a history, physical, pertinent records review and Veteran-answered [Report of Medical History], which was specifically negative for frequent or severe headaches. Given the nature of the veteran's eye injury and the availability of records, it is highly unlikely a significant headache condition would have gone unnoted or unreported. There is no evidence of a headache condition until a single reference on 2/11/05, 23 years post-service. Any headache condition arising due to the veteran's eye injury with glass and subsequent enucleation surgery would have been evident at that time or proximate to it and would not have arisen 23 years post-service. The TBI consult on 7/16/12 notes that the veteran reported onset with his first head injury in service. Again, there is no evidence to support this claim and the separation exam actually belies the claim. The headaches complained of on that exam in July 2012 were noted to have mixed migraine and cervicogenic components. It is less likely than not that the veteran's currently diagnosed headaches are due to or incurred in events in service, including the eye injury and removal of the eye. It is medically implausible that a headache would have developed so remotely from events in service had they been the cause of the veteran's headache and almost certainly would've arisen at the time of the injury or in the relatively immediate post-op timeframe. It is more likely than not that the headaches had their onset in around 2012, as the 2005 headache does not appear to have been chronic but would not alter the opinion, only the timeline. As the headaches are not related to the eye injury and surgery anatomically or pathophysiologically, there is no mechanism by which the residuals of the eye surgery could cause or aggravate the veteran's headache condition. In summary, it is less likely than not that the veteran's headaches had their nexus in service or are due to events in service, including a head injury and/or the veteran's left eye injury and enucleation. It is less likely than not that the headaches have been aggravated beyond the natural course due to any cause, including the eye injury and enucleation or any head injury in service. In weighing the probative value of the lay statements of record, the Board recognizes that the Veteran asserts his headache disability is related to service. As noted above, the Veteran's current report of a blast injury/TBI in service in 1979 is not credible. Thus, his statements attributing his headaches to such an event are not probative. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the potential relationship between the Veteran's current headache disability and his period of service, is complex in nature and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). There is no indication that the Veteran possesses the medical knowledge to attribute his condition to events or injuries in service. Therefore, he is not competent to opine on this complex medical question and these lay assertions are insufficient evidence to establish etiology. The Board further notes the VA opinions are supported by review of the Veteran's entire claims file and establish that these symptoms are not attributable to an in-service event, injury, or disease. Thus, the Board finds the probative weight of the lay statements of record is outweighed by the probative weight of the more comprehensive and well-supported VA opinions, which are based upon consideration of the Veteran's pertinent medical history and his lay assertions and complaints. Service connection for a headache condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's alleged disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In reaching this conclusion, the Board recognizes that the Veteran believes his condition is related to an in-service injury, event, or disease, specifically the alleged generator explosion in 1979; however, the Board reiterates that the Veteran's report of this event is not credible. Further, the Board finds the May 2014 and June 2021 VA examinations and opinions to be highly probative. The Veteran is competent to report his readily observable symptoms, but the Board has found his reports of such to be not credible. While he reports having daily headaches since 1979, the treatment records do not support this. While there are occasional references to headaches prior to 2012, in September 2012 the Veteran reported he had experienced daily headaches since a TBI in February 2012 (which occurred while the Veteran was a civilian). This is affirmative evidence contrary to his current assertions, and the Board finds it more probative given that the statement was made contemporaneous to evaluation. Therefore, the Board finds the supporting rationale of the May 2014 and June 2021 VA opinions are consistent with the facts found and, when considered alongside the other competent and probative medical evidence of record, are adequate to decide the claim. The Board also finds the June 2021 and January 2022 medical opinions of record highly probative in determining whether the Veteran's headache disability was caused or aggravated by his service-connected left eye disability, or surgery for such, as they are shown to have been based on a review of the Veteran's record and are accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's assertions that his headache disability was caused or aggravated by his service-connected left eye disability or surgery for such. However, as this issue is medically complex, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Since the competent and probative evidence of record fails to indicate that the Veteran's headache disability had onset in, or is otherwise related to service; or, that it was either caused or aggravated by a service-connected disability, service connection is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, the weight of the competent and persuasive evidence is against the claim. Service connection for a headache disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.