Citation Nr: 22034412 Decision Date: 06/13/22 Archive Date: 06/13/22 DOCKET NO. 18-53 789 DATE: June 13, 2022 ORDER Entitlement to service connection for headaches is granted. FINDING OF FACT The Veteran's symptoms of headaches began during active service and have been continuous since separation from service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from January 1999 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been associated with the Veteran's electronic claims file. In December 2021, the Board, in pertinent part, remanded the issue on appeal for additional development. The matter has returned to the Board for further appellate consideration. SERVICE CONNECTION Generally, to establish service connection, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for headaches is granted. The Veteran seeks entitlement to service connection for headaches. Specifically, during the January 2021 hearing, the Veteran testified that he has been having headaches ever since service. As an organic disease of the nervous system, chronic headaches are a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker, 708 F.3d at 1335-1337. As an initial matter, the Board finds that the Veteran has a current diagnosis of tension headaches, as reflected in the August 2016 VA examination report. Thus, the first element of service connection has been met. Next, the evidence supports a finding of in-service onset of the claimed headache disability. During the January 2021 Board hearing, the Veteran testified that he has suffered headaches since service and that they have been continuous since service. He stated, "[t]hey've never gone away." See January 2021 Hearing transcript at page 17. Indeed, the Veteran's December 1998 entrance examination does not reflect that the Veteran had any problems related to headaches or a head injury upon entry into active service. The evidence shows that the Veteran first complained of headaches during service. An August 2004 Medical Evaluation Board Summary notes that the Veteran had occasional headaches for the past four months. He treated the headaches with Tylenol and Advil. In a September 2004 report of medical history, the Veteran indicated "yes" to frequent or severe headache. The Board finds the Veteran's testimony to be credible, as it is consistent with the circumstances of his service and are corroborated by the in-service medical evidence. 38 U.S.C. § 1154(a). Furthermore, the Veteran is competent to report lay-observable symptoms of headaches; that he experienced symptoms of headaches during and following service; and that it has continued since then. See Layno, 6 Vet. App. at 470; 38 C.F.R. § 3.159(a)(2). Thus, the Board accepts the Veteran's testimony as competent evidence establishing in-service onset, and, as such, the second element of service connection has been met. Next, as to continuity, the Board finds that the Veteran has competently and credibly testified to the onset of his headache symptoms during service and that they have continued since that time. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether symptoms of headaches have been continuous since service. As previously indicated, symptoms of headaches were first reported during the Veteran's period of service, which had persisted for at least four months. As indicated above, the Veteran testified that the headaches never went away. They have been continuous. Thus, based on the foregoing, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of headaches since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). (Continued on the next page) Finally, as to nexus, the Board notes that the record does not include a positive nexus opinion. While the record does not include a medical opinion that indicates a nexus between the Veteran's headaches with service, the Board does not need to reach the weight assignable to any medical opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of chronic headaches (38 C.F.R. § 3.309(a)) based on a finding of "continuous" symptoms of headaches since service rather than on direct service connection. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on evidence of continuous post-service symptoms of headaches, presumptive service connection for headaches is warranted under 38 C.F.R. § 3.303(b). As the criteria for presumptive service connection for headaches based on continuous post-service symptoms are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.