Citation Nr: 0735446 Decision Date: 11/09/07 Archive Date: 11/26/07 DOCKET NO. 04-41 839A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for claimed hypertension, to include as secondary to the service- connected bipolar disorder. 2. Entitlement to service connection for claimed migraine headaches, to include as secondary to the service-connected bipolar disorder. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran performed active duty from September 1966 to September 1968 and from November 1990 to July 1991 and served in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision issued by the RO. FINDINGS OF FACT 1. The currently demonstrated hypertension is shown as likely as not is to be due to the use of medication prescribed to treat the veteran's service-connected bipolar disorder. 2. The currently demonstrated migraine headaches are not shown to be due to any event or incident of the veteran's period of active service or to have been caused or aggravated by the service-connected bipolar disorder. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the veteran, his disability manifested by hypertension is proximately due to or the result of the service-connected bipolar disorder. 38 U.S.C.A. §§ 101, 1112, 1113, 1131, 5103, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.310 (2007). 2. The veteran's disability manifested by migraine headaches is not due to disease or injury that was incurred in or aggravated by service; nor is it proximately due to or the result of medication prescribed to treat his service- connected bipolar disorder. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. The regulations implementing the VCAA provisions have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist him with the development of facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the RO has obtained records of treatment reported by the veteran and has afforded him comprehensive VA examinations addressing his claimed disorders. There is no indication from the record of additional medical treatment for which the RO has not obtained, or made sufficient efforts to obtain, corresponding records. The Board is also satisfied that the RO met VA's duty to notify the veteran of the evidence necessary to substantiate his claims in a November 2001 letter. By this letter, the RO also notified the veteran of exactly which portion of that evidence was to be provided by him and which portion VA would attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his or her possession that pertains to a claim. In Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. Here, the noted VCAA letter was issued prior to the appealed May 2003 rating decision. Moreover, as indicated, the RO has taken all necessary steps to both notify the veteran of the evidence needed to substantiate his claim and assist him in developing relevant evidence. The Board is also aware of the considerations of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. By a March 2006 letter the RO notified the veteran of the evidence necessary to establish both disability ratings and effective dates in compliance with these requirements. Id. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Specifically, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA has recently added revised provisions of 38 C.F.R. § 3.310(b) to conform the regulation to the holding of Allen. 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Under this recent revision, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. Id. The rating activity will determine the baseline and current levels of severity under VA's Schedule for Rating Disabilities (38 C.F.R., part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In the present case, as will be discussed hereinbelow, the evidence of record does not substantiate a causal relationship between the medication prescribed for the veteran's service-connected bipolar disorder and his claimed migraine headaches. As such, no action is required to establish the "baseline level of severity" of his service- connected bipolar disorder, and the newly enacted provisions of 38 C.F.R. § 3.310(b) are not directly relevant to this case. Accordingly, the veteran will not be prejudiced by Board action regarding the migraine headaches at the present time, notwithstanding that he has not been notified of the new provisions of 38 C.F.R. § 3.310(b) to date. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). III. Facts and Analysis The Board has reviewed the veteran's service medical records and finds no complaints or findings referable to hypertension or migraine headaches. Subsequent to service, a February 2001 private treatment record indicated that the veteran had a history of migraine headaches. In an August 2001 private treatment record, he complained of having recurrent headaches. He described the headaches as stabbing, frontotemporal, disabling headaches associated with nausea that occurred once every two weeks. Maxalt relieved these headache symptoms. Additionally, the veteran had experienced fluctuating hypertension that was well controlled with medication. The veteran has been diagnosed with multiple disorders including chronic migraine headaches, a bipolar disorder and hypertension. The examiner noted the veteran took various medications including Depakote, Verapamil, Maxalt and Flonase. During a November 2001 VA examination, the veteran reported that his service-connected bipolar disorder was treated with Depakote. He had a 3 year history of headaches, mainly on the right side that occurred about four times a week and more severe headaches twice a week. Generally, the headaches lasted about two hours and were relieved with Maxalt. There was no associated nausea or vomiting. The headaches usually were not debilitating. The veteran was diagnosed with migraine headaches. The VA examiner opined that the headaches were not related to the veteran's service-connected bipolar disorder. The examiner explained that migraine headaches were not considered a part of the bipolar disease process. In another November 2001 VA examination, the veteran reported having a two year history of hypertension. He denied any history of angina, palpitations, heart murmur, chest pain or shortness of breath. On examination, the veteran's blood pressure was 160/100. He was diagnosed with hypertension poorly controlled with medication. The examiner opined that there was no evidence that the veteran's hypertension was related to his service- connected bipolar disorder or that there had been exacerbation of his symptom because of the bipolar disorder. In a May 2002 VA medical facility statement, the examiner reported that the veteran took divalproex (Depakote) to treat his service-connected bipolar disorder and added that the veteran had hypertension and migraine headaches. The examiner stated that patients with bipolar disorder generally had difficulty coping with stress and as a result, suffered from migraine headaches which were generally brought on by stress. Thus, the examiner opined that the veteran's migraine headaches occurred as a consequence of his bipolar disorder. In a February 2003 VA examination, the veteran was diagnosed with hypertension and migraine headaches. The examiner opined that the migraine headaches were not due to bipolar disease since migraine was a separate disease entity that was not related to bipolar disease. In a February 2003 addendum VA examination opinion, the examiner noted that the medical literature did not correlate bipolar disorder of any kind as a principal causative for headaches or hypertension. The examiner stated that "it [was] possible that medications used to treat bipolar disorder could lead to manifestations of headaches and high blood pressure, but in this case, medications should be carefully reviewed and switched until a more efficient product could be found." In a May 2006 VA examination, the diagnoses of hypertension and migraine headaches were confirmed. The examiner stated that the migraine headaches and high blood pressure were entities that the veteran manifested independently of the service-connected bipolar disorder. Thus, the examiner opined that the migraine headaches and hypertension were not caused by or the result of the veteran's service-connected bipolar disorder. The veteran asserts in this case that the medication taken to treat his service-connected bipolar disorder has caused his migraine headaches and hypertension. He also has submitted research material which indicates headaches and high blood pressure are a side effect of Depakote, the drug used to treat his service-connected bipolar disorder. In June 2007, the Board requested that a VA medical expert review the claims file and offer an opinion as to whether it was at least as likely as not that the currently demonstrated migraine headaches and hypertension were proximately due to, or result from the veteran's service-connected bipolar disorder. Specifically, was it at least as likely as not that the medication, namely Depakote, used to treat the service-connected bipolar disorder caused or aggravated the claimed migraine headaches or hypertension. In an August 2007 response, the medical expert indicated that he had reviewed the claims file. The expert commented that there was no evidence from the literature or from this case that the veteran's bipolar disorder treatment, namely with Depakote, caused or aggravated the veteran's migraine headaches. On the contrary, the expert noted that it was well recognized that Depakote was an effective treatment for migraine prophylaxis and that the drug was routinely prescribed for this. As to the claim of service connection for hypertension, the VA reviewer also noted that there was no literature to support the notion that bipolar disorder causes hypertension and that the records did not indicate that Depakote was the primary cause of the veteran's hypertension in this case. However, the VA reviewer did note that the literature did document hypertension as an adverse effect in greater than 1 percent but less than 5 percent of 89 patients receiving divalproex sodium in controlled clinical trials for treatment of mania. The results were similar in the controlled clinical trials for treatment of complex partial seizures where divalproex sodium was the prescribed medication. Given the data, the expert could not exclude the possibility that Depakote might have contributed to the veteran's hypertension. Accordingly, the expert opined that it was at least as likely as not that Depakote, used to treat the veteran's service-connected bipolar disorder, might have aggravated the veteran's hypertension. Based on the evidence of record, the Board finds the evidence to be in relative equipoise in showing that the currently documented hypertension as likely as not was aggravated by the medication, Depakote, prescribed to treat his service- connected bipolar disorder. By extending the benefit of the doubt to the veteran, service connection for hypertension is warranted. As to the migraine headaches, the only other evidence of record supporting the claim are the veteran's various lay statements. While the veteran is certainly competent to testify to symptoms capable of lay observation, he has not been shown to possess the requisite medical training or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion in this case cannot constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). Overall, the preponderance of the evidence is against the veteran's claim of service connection for migraine headaches, to include as secondary to the service-connected bipolar disorder and must be denied. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension, as secondary to the service-connected bipolar disorder is granted. Service connection for migraine headaches, to include as secondary to the service-connected bipolar disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs