Citation Nr: 1123537 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 08-20 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for headaches, to include as secondary to service-connected compression fracture of the thoracic spine with chronic upper back pain and spondylosis. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to November 1979 and from July 2003 to January 2006. She also had additional periods of reserve service in the Army National Guard of Oregon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claim of entitlement to service connection for headaches. In March 2010, the Board remanded this matter for additional development. The RO has substantially complied with the Board's request. However, in the introduction section of the Board's remand, the Board noted that the issues of whether new and material evidence has been received in order to reopen the claims of entitlement to service connection for peripheral neuropathy of the left upper extremity and right lower extremity had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board noted that it did not have jurisdiction over the matters and referred them to the AOJ for appropriate action. It does not appear as though action has been taken with regard to the above-referenced matters. Thus, they are again referred to the RO. The Board is cognizant that a Tillamook County Veterans' Service Officer from the Oregon Department of Veterans' Affairs (ODVA) submitted statements in April 2010 and January 2011 as well as a VA treatment note in January 2011 that were pertinent to the claim on appeal. However, a valid Power of Attorney (POA) in favor of that service organization has not been associated with the record. Thus, the Veteran remains unrepresented for the current matter on appeal. As the Board is granting in full the benefit sought on appeal, any error that was committed with respect to failure to obtain clarification of the Veteran's representation status was not prejudicial and need not be further considered. As discussed above, in January 2011, additional evidence was submitted to the Board for consideration in connection with the claim on appeal as well as a waiver of RO jurisdiction of such evidence. Thus, the Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2010). FINDING OF FACT Resolving all doubt in the Veteran's favor, headaches are causally related to the Veteran's service-connected thoracic spine disability. CONCLUSION OF LAW Headaches are proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this decision, as the Board has granted the Veteran's claim of entitlement to service connection for headaches (a complete grant of the benefit sought on appeal), no additional discussion of VA's duty to notify and assist is necessary for that matter. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). 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). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 38 C.F.R. § 3.310(b) (2010). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Factual Background The Veteran asserts that she is entitled to service connection for headaches as secondary to her service-connected thoracic spine disability. Private treatment records dated in October 2004 and July 2005 showed complaints of headaches as well as reflected treatment from 2003 to 2005 for mild thoracic spine pain and compression fractures. In a May 2006 VA neurological disorders examination report, the Veteran indicated that she started having headaches right after her in-service accident. She reported headaches with a duration of four to five hours that start from the back of her head and come to the front with throbbing pain, nausea, and light and noise sensitivity. She also admitted to having daily headaches with mild, throbbing pain in the front and no nausea or light or noise sensitivity. She was noted to have normal brain MRI findings. The examiner, a VA physician, stated that the Veteran's headaches were consistent with migraines, which were not tension or muscular headaches and were therefore less likely related to thoracic vertebrae compression fractures sustained in service. In an October 2006 rating decision, the RO granted entitlement to service connection for compression fracture of the thoracic spine with chronic upper back pain and spondylosis, assigning a 20 percent rating effective October 20, 2005. Records from Columbia Memorial Hospital dated in 2007 detailed complaints of migraine headaches as well as daily headaches secondary to cervical and thoracic problems. The physician listed an impression of chronic headache and neck pain. A September 2007 evaluation report from P. M. P, M. D., a private physician, showed complaints of chronic upper back pain and headaches. The physician listed diagnoses of history of T6 and T8 compression fractures, herniated discs (mild at T8-9 and moderate right at T9-10), chronic cervical strain and/or trigger points, and cervicogenic headache and/or migraine. He opined that the Veteran does have headaches related to her in-service injury, as she never had headaches before the injury and the axial loading that was sufficient to cause compression fracture in one or more thoracic vertebra was certainly sufficient to cause an intradiscal injury in the cervical area and ultimately cervicogenic headaches. In an additional October 2008 treatment record, the physician listed diagnoses of bilateral cervical facet syndrome most likely C2-3 (but also probably at C3-4) and possible right C6 radiculopathy. Based on her history, the physician related the Veteran's neck pain and facet syndrome due to her jamming or axial loading from the original in-service accident in September 2003. In a May 2010 VA examination report, the Veteran indicated that her headaches started in 2003 and have persistently reoccurred with throbbing and associated with nausea and vomiting but no visual aura, phonophobia, or photophobia. She specifically reported that her headaches were prostrating, last from five hours up to two days, and come only with tightness of the upper back. Triggers for headaches were noted to consist of back spasms. After reviewing the claims file and performing the examination, the examiner, a VA physician, listed an impression of "[m]igraine headaches without aura that at least as likely as not contributed by the thoracic spine compression fractures and residual soft tissue involvement." In a January 2011 VA treatment record, the Veteran described continued severe upper neck and back pain that begins in the upper thoracic spine and radiates to her head. She reported that the pain began in 2003 when she injured her back and suffered compression fractures. The examiner, a VA physician, listed an assessment of chronic neck pain and headache. He agreed that the time frame of her history suggests a relationship between her injury and current symptoms. Analysis Evidence of record demonstrates that the Veteran is currently diagnosed with headaches. In addition, it is undisputed that she is currently service-connected for a thoracic spine disability. In this case, the Board observes that headaches are subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). As noted above, the Veteran has repeatedly indicated that she began to experience headaches after her in-service thoracic spine injury in 2003. The Board also finds the Veteran's consistent assertions concerning in-service headaches as well as continuity of such symptomatology since service to be credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Turning to whether the Veteran's current headaches were proximately caused by or proximately aggravated by her service-connected thoracic spine disability, the Board notes that there are multiple conflicting medical opinions of record addressing whether there is a causal connection between the claimed headaches and the service-connected thoracic spine disability. Weighing against the Veteran's claim is the May 2006 VA examiner's opinion that her headaches were consistent with migraines and were therefore less likely related to thoracic vertebrae compression fractures sustained in service. In an additional May 2010 VA examination report, a VA physician opined that the Veteran's thoracic spine compression fractures and residual soft tissue involvement at least as likely as not contributed to her migraine headaches without aura. Additionally, the September 2007 statement from a private physician and the January 2011 statements from a VA physician of record are also supportive of the Veteran's claim. In view of the totality of the evidence, including the Veteran's competent and credible statements concerning the onset date and nature of her headaches, the award of entitlement to service connection for a thoracic spine disability, the VA and private treatment records showing current treatment for headaches, the September 2007 private medical opinion, and the medical opinions contained in the May 2010 VA examination report and the January 2011 VA treatment note, the Board finds that the evidence of record is, at minimum, in equipoise. As such, resolving all doubt in her favor, the Board finds that it is as likely as not that the Veteran's current headaches were caused or aggravated by her service-connected thoracic spine disability. Consequently, affording the Veteran the benefit of the doubt, service connection for headaches is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for headaches, as secondary to service-connected compression fracture of the thoracic spine with chronic upper back pain and spondylosis, is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs