Citation Nr: 1104970 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 06-11 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for headaches, to include as secondary to the service-connected schizophrenia, schizoaffective type with depressive features. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to March 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, reopened a previously denied claim of service connection for tension headaches, claimed as secondary to the service-connected schizophrenia, schizoaffective type with depressive features. However, the RO ultimately denied the claim on the merits. The matter was previously before the Board in November 2009, at which time, the claim was reopened and remanded back to the RO, via the Appeals Management Center (AMC) for additional development of the record. The agency of original jurisdiction (AOJ) substantially complied with the December 2009 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT The competent and probative medical evidence of record is in relative equipoise as to whether the Veteran's headaches had their onset during service and/or are related to, or are a manifestation of, the service-connected psychiatric disorder. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, a headache disability was incurred in service and/or is related to his service- connected psychiatric disorder. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The grant of service connection for a headache disability constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. II. Service Connection The Veteran seeks service connection for a headache disability, claimed as secondary to the service-connected schizophrenia, schizoaffective type, with depressive features (psychiatric disorder). The Veteran has consistently maintained that his headaches began during the onset of his psychiatric symptoms in service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non- service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the service treatment records (STRs) reveals that the Veteran did not have evidence of a pre-existing headache condition when he entered service, but was treated for headaches during service. During service, the Veteran was treated for headaches in October 1990, December 1990 and March 1991. Tylenol was prescribed for the headaches. VA post-service treatment records note consistent complaints of headaches beginning in 1998. In an April 1999 statement, Dr. Royder, a private doctor, indicated that the Veteran had chronic muscle tension cephalgia which began in January 1991. Dr. Royder noted the Veteran reportedly complained to doctors and staff concerning his neck, shoulder and headaches but they did not offer any treatment for those chronic problems. Dr. Royder opined that the Veteran's muscle tension contraction cephalgia was directly due to his psychiatric illness and should be service connected. In an undated lay statement, a former co-worker noted that the Veteran came to work "constantly complaining of headaches" and "always took aspirin to try to help his headaches." A history of migraine headaches is noted on a private medical record from June 1999. VA records from 1999 note continued complaints of frequent recurrent headache pain. Significantly, an August 1999 treatment record notes that the Veteran presented with a history of chronic tension headaches for nine years. An April 2000 VA neurology examination notes that the Veteran reported having headaches in the Navy. He reported that the headaches occurred before, during and after his psychiatric condition became manifested and caused hospitalization. The Veteran described the headaches as occurring in both sides of the head, being squeezing in nature, going to the back of the neck, and then out across both shoulders. The Veteran reported headaches that lasted 30 minutes or more, and that occurred two to three times per week. The diagnosis was tension headaches, and the examiner opined that the headaches and other musculoskeletal pains of the neck and shoulders were considered to be a pain disorder associated with, and a manifestation of, the psychiatric disorder. VA records from June 2005 show continued treatment for headaches. In a July 2005 lay statement, the Veteran's wife reported that the Veteran had been continuously complaining of headaches through the years. In a November 2005 VA examination report, the examiner noted that the Veteran had multiple cervical disc protrusions and mild posterior spurring of the cervical spine. The examiner therefore opined that the Veteran's headaches were not secondary to military service; but, rather, their etiology was from the multiple cervical disc protrusions and mild posterior spurring of the cervical spine. VA outpatient records from 2006 continue to show treatment for chronic headaches. A private treatment report by Dr. Chen, a Board Certified neurologist, from December 2006 notes the Veteran's chief complaint of headaches and sleep problems. The Veteran reported that his headache was frontally located and extended to the back. The Veteran complained of nausea and occasional vomiting with the headaches. He reported seeing flashing white lights with the headaches. The headaches reportedly occurred about four times per week and could last up to several hours per day. Neurological examination was essentially negative. The impression was chronic headaches, with a history consistent with migraine headaches. In addition, Dr. Chen believed there was some muscle contraction headache component as well. Dr. Chen felt that putting the Veteran on migraine medication would be helpful. The Veteran was started on Topamax for prevention, and Maxalt was prescribed on an as needed basis. A January 2007 follow-up report from Dr. Chen noted that the Veteran reported a reduction in headaches, with less intensity. He thought the Topamax might be helping. Dr. Chen increased the Veteran's Topamax dosage. The Veteran was afforded a VA examination in February 2010 to determine whether the Veteran's headaches were caused or aggravated by the service-connected psychiatric disorder. The examiner concluded that the Veteran's headaches were unrelated to the Veteran's psychiatric disorder. In so doing, the examiner had difficulty diagnosing the type of headache from which the Veteran suffers and focused primarily on the fact that the Veteran's headaches lasted only 10 to 15 minutes. It is unclear how the examiner arrived at this conclusion given that the other evidence of record suggests that the Veteran's headaches last longer than 15 minutes, as noted above. Moreover, although the examiner noted that she reviewed the Veteran's claims file, her findings with regard to the Veteran's medical history are inconsistent with the objective evidence of record. For example, the examiner noted that the record did not reveal any complaints of headaches during military service, but this is not accurate. As noted above, the Veteran complained of headaches in October 1990, December 1990, and May 1991, and was treated with Tylenol. Additionally, the February 2010 examiner believed that the Veteran's headaches were not migraine headaches because of the short duration; however, she did not consider that all of the other evidence of record noted a longer duration with respect to the headaches, and, moreover, she did not consider the fact that the Veteran reported improvement in his headaches after taking Topamax, a drug often prescribed for the prevention of migraine headaches. Moreover, the Topamax was prescribed by, and the diagnosis of migraine was made by, a Board Certified neurologist. Importantly, the Veteran submitted a statement in response to the February 2010 examination report noting that his headaches indeed lasted much longer than 15 minutes. For these reasons, the examination of February 2010 carries little probative value. The examiner relied on inaccurate information and did not consider the STRs which showed complaints of headaches during service. In sum, the evidence for and against service connection for headaches is in relative equipoise; that is, the evidence demonstrating that the Veteran's headache disability is related to service (or to the service-connected psychiatric disorder) is equally weighted against the evidence demonstrating other etiology, such as the cervical spine disability. The evidence in support of the Veteran's claim includes STR's showing complaints of headaches during service, which coincide with the onset of the service-connected psychiatric disorder. In addition, there are two competent medical opinions of record attributing the headaches to the service-connected psychiatric disorder. Weighing against the Veteran's claim is the November 2005 opinion that the Veteran's headaches are due to his cervical spine disorder. Even so, this opinion does not factor in the onset of the cervical spine disorder in conjunction with the onset of the headaches. In addition to the November 2005 opinion, the February 2010 opinion from a VA examiner weighs against the claim; however, as pointed out above, this opinion carries little probative value because it is based on inaccurate information. Therefore, resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's headache disability is linked to the service-connected psychiatric disability; or, in the alternative, that the headaches had their onset during service. This conclusion is based on objective evidence shown in the STR's, lay statements, and opinions from two doctors. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for a headache disability. ORDER Service connection for a headache disability is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs