Citation Nr: 0838718 Decision Date: 11/10/08 Archive Date: 11/20/08 DOCKET NO. 05-22 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for migraine headaches, secondary to post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a heart condition, secondary to PTSD. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Associate Counsel INTRODUCTION The veteran had active service from August 1965 to August 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2004 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). A hearing before the undersigned Acting Veterans Law Judge was held at the RO in August 2008. The hearing transcript has been associated with the claims file. The issue of service connection for a lumbar spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's migraine headaches are not secondary to his service-connected PTSD. 2. The veteran is not currently diagnosed with a cardiovascular disorder. 3. The veteran withdrew his appeal of the issue of entitlement to service connection for hypertension on August 7, 2008. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches secondary to PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2008). 2. The criteria for service connection for a cardiovascular disorder secondary to PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2008). 3. The criteria for withdrawal of a Substantive Appeal by the appellant with respect to the issue of service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. In February 2004, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing the notice then required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Subsequently in March 2006, the AOJ provided notice of the effective date and disability rating regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this notice postdated the initial adjudication and the claim was not readjudicated, the Board finds that no prejudice resulted because the veteran had ample time to submit evidence and respond to the notice, and the evidence indicates that the veteran was able to effectively participate in the appeals process. Additionally, because service connection has been denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the veteran. VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records, providing a VA examination, and providing a personal hearing. Consequently, the Board finds the claims ready for adjudication. Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Service connection also may be granted for disability shown to be proximately due to, or the result of, a service- connected disorder. See 38 C.F.R. § 3.310(a). This regulation has been interpreted by the Court to allow service connection for a disorder which is caused by a service- connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006, to implement Allen. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). Under the revised section 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service- connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service- connected condition), in comparison to the medical evidence establishing the current level of severity of the nonservice- connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular nonservice-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). Migraine Headaches The record well documents that the veteran has chronic migraine headaches. As the veteran has a current disability, the question remains whether the chronic migraine headaches are proximately due to, or the result of, his service- connected PTSD. May and June 2002 private treatment records report the veteran's history of headaches from "time to time" since approximately winter 2001, after exposure to "some kind of inhaled chemical" in August 2001. See Northside Clinic treatment records. Per the veteran, he was possibly exposed to hydrogen sulfide and ammonia. The examiner noted that the veteran did not lose consciousness, and he reported that low grade exposure to those chemicals should only result in temporary symptoms. The examiner suggested that the headaches might be related to sleep apnea or allergies; he did not believe the headaches were related to the chemical exposure. A VA examination was conducted in September 2004. The record reports the veteran's history of recurrent progressively severe headaches since service. The veteran reported that he was unable to determine what the trigger for the headaches was, though he sometimes had them when tired, with fluctuating blood pressure, and after nightmares. After examination and review of the file, the examiner diagnosed the veteran with chronic migraine headaches. The examiner opined that the headaches were not caused by or a result of PTSD. Based on the veteran's history of waking up from nightmares with a headache, however, the examiner believed that the headaches could "possibly be aggravated" by PTSD. The Board finds that service connection is not warranted for migraine headaches. Although the record includes a VA examiner's finding that the veteran's PTSD could possibly be aggravating his headaches, the examiner does not provide any medical rationale for how this could be so (meaning how it could result in a permanent worsening of the migraines rather than a temporary exacerbation) and, more importantly, the opinion is too conditional and speculative to carry probative value. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. See also Slater v. Principi, 4 Vet. App. 43 (1993). The veteran has not provided any opinions from other doctors, or any other medical evidence, in support of his claim that his headaches are the result of or aggravated by his service- connected PTSD. The Board notes that the veteran has submitted evidence indicating that he had complained of migraine headaches for numerous years and that he had received medical treatment for his migraine headaches. This evidence fails to indicate a nexus between the veteran's current migraine disorder and his PTSD, however, and the Board notes that some of the private treatment records indicate that the veteran's headaches were possibly due to sleep apnea or allergies, rather than PTSD. Overall, the preponderance of the evidence of record is against a nexus between the veteran's chronic migraine headache and his service-connected PTSD. Because the preponderance of the evidence is against such a nexus, service connection for migraine headaches on a secondary basis must be denied Heart Condition Service medical records do not report any findings indicative of a heart condition, and the August 1968 separation examination reported normal clinical findings for the heart and a negative history as to palpitation or pounding heart. Post-service medical records also do not report any finding or diagnoses of cardiovascular disease. The records do indicate the veteran's history of a fluttering heart, which a physician stated was "probably ectopic beats, either [premature atrial contractions] or [premature ventricular contractions." See May 2002 Northside Clinic record. Fluttering heart/ectopic beats are not "disabilities" for which service connection can be granted, however; they are symptoms which, without a finding of an underlying disorder, cannot be service-connected. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As stated above, the evidence does not indicate that a cardiovascular "disability" has been diagnosed, consequently, service connection for a heart condition must be denied. Hypertension A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2008). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2008). On August 7, 2008, the date of the Travel Board hearing, the veteran submitted a statement expressing his desire to withdraw his appeal of the issue of entitlement to service connection for hypertension. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue and it must be dismissed. ORDER Service connection for chronic migraine headaches secondary to PTSD is denied. Service connection for a heart condition secondary to PTSD is denied. Service connection for hypertension is dismissed. REMAND The veteran has reported that he has had problems with back pain since attending Jump School in service. Service records indicate that the veteran has a parachute badge, and post- service medical records indicate that the veteran has been diagnosed with lumbar spondylosis. The Board notes that the veteran is competent to report a long-standing history of low back pain, and based on the evidence of a current diagnosis and the successful completion of Jump School in service, the Board finds that a VA examination should be conducted and an opinion obtained to determine whether the veteran's low back disorder is related to service. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. The AMC should schedule the veteran for a VA examination to determine the nature and etiology of the veteran's lumbar spine disorder. The examiner should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the lumbar spine disorder was incurred in service or is otherwise causally related to service. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination and this fact should be acknowledged in the report. 2. Thereafter, the AMC should readjudicate the appellant's claim. If the benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs