Citation Nr: 1101052 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 06-32 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for right cluster headaches. In August 2008, the Veteran testified at a hearing before undersigned Acting Veterans Law Judge, seated in Columbia, South Carolina. A transcript was made and is of record. This case has been remanded by the Board twice, in October 2008 and June 2009, respectively. Most recently, in June 2009, the Board remanded the issue currently on appeal to the Appeals Management Center (AMC) to insure compliance with the directives contained in the October 2008 remand. Specifically, the Board requested that the AMC either procure an addendum to the December 2008 VA medical examination report or, if the December 2008 VA examiner were not available, to schedule an additional VA examination. The record indicates that the AMC scheduled the Veteran for a VA neurological examination, but the Veteran did not appear. As the Veteran did not cooperate with VA in assisting with this claim, the Board finds that the AMC substantially complied with the June 2009 Remand directives regarding service connection of the Veteran's headache disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991) (noting that the duty to assist is not a one-way street, and a veteran cannot passively wait for help in those circumstances where he may or should have information that is essential in obtaining the putative evidence). In October 2010, the Board requested an opinion from the Veteran's Health Administration (VHA) regarding whether the Veteran's headache disability was related to exposure to irritants during service. A November 2010 VHA opinion was received by the Board. The record does not indicate that the Board subsequently issued a copy of this opinion to the Veteran and his representative. However, as this decision constitutes a full grant of the Veteran's appeal, the Board finds the failure to forward him a copy of the VHA opinion to be harmless error. Moreover, throughout the pendency of this appeal, the RO has adjudicated this claim as one of service connection for right cluster headaches. However, the record indicates that this diagnosis is questionable, as the most recent treatment records note diagnoses for migraines. Therefore, the Board finds that the claim should be classified as one of service connection for a headache disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a health disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran was exposed to irritants, specifically tear gas, during service. 2. Symptoms of headache were continuous after service separation. 3. The Veteran currently experiences a diagnosed recurring headache disability. 4. The Veteran developed his current headache disability due to exposure to irritants, such as tear gas, during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, a headache disability was incurred during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Because the determination below constitutes a full grant of the claim for service connection for a headache disability, there is no reason to discuss how VA has satisfied the VCAA. Service Connection Laws and Regulations Service connection may be granted if it is shown a veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.306 (2010). A disorder may be service connected if the evidence of record reveals the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, generally, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Service Connection for a Headache Disability The Veteran essentially contends that he developed a headache disability as a result of exposure to irritants, such as tear gas, during service. The Veteran's representative asserts that the weight of the evidence for and against the Veteran's claim is at least in relative equipoise. Having considered all the evidence of record in light of the regulations noted above, the Board finds that, with the resolution of reasonable doubt in the Veteran's favor, service connection is warranted for a headache disability. As an initial matter, the Board finds that the weight of the evidence demonstrates that the Veteran was exposed to irritants, such as tear gas, during service. The Veteran's service personnel records indicate that, during service, his primary duty was that of a nuclear, biological, and chemical defense specialist. At the August 2008 Board personal hearing, the Veteran testified that, as part of his in-service duties, he had to work with CS gas, more commonly referred to as tear gas, for lengthy periods of time. (Hearing Transcript, pages 5-6). Considering the Veteran's in-service specialty noted in his service personnel records and his credible testimony regarding exposure to tear gas during service, the Board finds that the Veteran was exposed to irritants, such as tear gas, during service. The Board also finds that the Veteran experienced continuous symptoms of headache after service, and currently experiences a recurrent headache disability. In a November 2005 VA medical examination report, the Veteran reported experiencing monthly or bimonthly episodes of intense throbbing headache pain in the internal aspect of the right eye behind the eye. After examination, the VA examiner assessed that the Veteran could have modified right cluster headaches. May 2006 VA treatment records indicate treatment for severe headaches, manifested by pain, vomiting, and blurred vision. In a November 2007 VA treatment record, the Veteran reported a history of migraine-like headaches, with worsening over the previous two years. In a December 2008 VA medical examination report, after examination, the VA examiner diagnosed the Veteran as having headaches consistent with a migraine syndrome. The Veteran has presented lay evidence indicating onset of the headaches immediately after exposure to irritants during service. The service treatment records, to include an April 2004 service discharge medical examination report and a July 2004 report of the Veteran's medical history, include no notation indicating diagnosis or treatment for headaches during service; however, at the November 2005 VA examination, the Veteran reported that he started experiencing headaches when he was first exposed to gas during service. He reported that, initially, he experienced the headaches seven to eight times per month, but since service discharge the episodes had decreased in number and now occurred only once or twice per month. At the August 2010 Board personal hearing, the Veteran specifically indicated that the headaches began while he was working in the "gas chamber" at Camp Lejune. (Hearing Transcript, page 7). The Board finds that the Veteran has made consistent credible statements indicating an in-service onset for his current headache disability and continuous symptoms since service separation. Considering this evidence, the Board finds that the Veteran has a current headache disability that has been recurrent, or continuous, since service separation. Regarding the cause of the headache disability, the Board finds that the weight of evidence is at least in relative equipoise on the question of whether the headaches are related to exposure to irritants, specifically tear gas, during service. Reviewing the medical evidence, in the November 2010 VHA opinion, the VHA clinician noted reviewing the entire claims file and listed many documents included therein in the report. After reviewing these documents, the VA clinician opined that it was possible that the Veteran experienced symptomatology of a headache disability during service. He noted that the Veteran had been consistent in his account throughout the pendency of the appeal. Considering this evidence, the VHA clinician found that it was as likely as not that the Veteran's headaches were related to in-service exposure to tear gas. By contrast, in the December 2008 VA medical examination report, the VA examiner noted having reviewed the claims file and reported that some evidence, specifically a November 2005 VA medical examination report, was missing at the time of his review. After an interview with the Veteran and a physical examination, the December 2008 VA examiner opined that the Veteran's headaches were most likely related to migraine syndrome. The VA examiner then stated as a basis for the opinion that there was no confirmatory evidence included in the service treatment records indicating in-service onset of headaches. Requiring such confirmatory evidence in the service treatment records is not a valid basis for a nexus opinion. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (Board may not find that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time); Barr v. Nicholson, 21 Vet. App. 303 (2007) (where the symptomatology is observable and identifiable by lay people, such symptomatology is not a determination 'medical in nature'). While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this instance, the December 2008 VA examiner essentially concluded that the Veteran did not experience an onset of headache symptomatology during service. As there is credible lay evidence that the Veteran did experience some headache symptomatology in service, this is a factually inaccurate history. The December 2008 VA examiner also did not address whether the Veteran's current headache disability could have been caused by exposure to tear gas. As the Veteran contends that said exposure caused his current headache disability and the December 2008 VA examination report fails to address this point, the Board finds it to be of limited probative value. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail of their analysis). The Board notes that the November 2010 VHA opinion is of weakened probative value as well. In this opinion, the VA clinician found that the Veteran's headache disability was as likely as not caused by exposure to tear gas during service. However, in the report, the VHA clinician failed to explain the basis of the opinion other than to state that the Veteran's post-discharge accounts of in-service onset of symptomatology appeared to be consistent. Id. Considering the totality of the evidence, to include the Veteran's statements, the December 2008 VA medical examination report, and the November 2010 VHA opinion, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current recurrent headache disability was caused by exposure to irritants in service. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for a headache disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a headache disability is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs