Citation Nr: 1324907 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-11 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for headaches, to include as due to a head injury. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. FINDING OF FACT The preponderance of the probative evidence of record indicates the Veteran's headaches did not originate during his active military service or for many years thereafter and are not related to his active service. CONCLUSION OF LAW The criteria for the establishment of service connection for headaches, to include as due to a head injury, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the March 2009 rating decision, he was provided notice consistent with the requirements of the VCAA in January 2009. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received information in January 2009 about the establishment of disability ratings and effective dates if a claim of service connection was successful. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. The record shows that the Veteran has not been afforded a VA examination in connection with the headaches claim. Such an examination or a medical opinion is not necessary in this case. There is no evidence of any complaints, findings, or treatment of headaches or a head injury in service, and the Veteran had reported having no history of such in his April 1972 Report of Medical History at separation. The only post-service evidence of headaches or any signs or symptoms of headaches consist of treatment on one occasion in February 2006 and during the month of October 2008. Moreover, as discussed in further detail below, there is no evidence, lay or medical, indicating there may be a relationship to service, given that the Veteran's lay history of a head injury in service and having headaches since that time has not been found to be credible and probative evidence. See 38 U.S.C. § 5103A(d)(2)(B); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Given the absence of any complaints, findings or treatment for a head injury or headaches in service, or signs or symptoms of same until many years after service, a VA examination or opinion is not necessary in this case. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. Analysis In statements presented throughout the duration of the appeal, the Veteran has maintained that his headaches are related to his active service, specifically to a head injury sustained during his active service. Service treatment records reflect no complaints, findings, treatment or diagnoses of a head injury or headaches in service. In the March 1970 entrance examination, a clinical evaluation revealed normal findings of the head. The Veteran reported no history of frequent or severe headache or a head injury in the March 1970 Report of Medical History. In the April 1972 separation examination, a clinical evaluation revealed normal findings of the head. He reported no history of frequent or severe headache or a head injury in the April 1972 Report of Medical History and only reported a history of hip injury due to a motorcycle accident in 1969. At that time, the service medical officer noted there was no further significant history reported by the Veteran. A June 1972 Statement of Medical Condition reflects that the Veteran reported there had been no change in his medical condition since his last separation examination. Private medical records from the Veteran's treating physician Dr. W.E.B., M.D., from February 2006 to January 2009 reflect that the Veteran was initially treated for complaints of headaches in February 2006 on one occasion and no diagnosis was provided. These records reflect that the Veteran was treated again in October 2008 for complaints of chronic headaches occurring twice in the past week. A physical examination of the head revealed findings were within normal limits. No diagnosis was provided. A problem list for Dr. W.E.B.'s treatment records included problems that had been diagnosed from September 2002 to February 2009 and did not include headaches or residuals of a head injury. The Veteran submitted a headache diary, documenting seven occurrences of headaches during the month of October 2008, ranging in severity from mostly mild to moderate on one occasion and severe on one occasion, and which were treated with Aleve and ibuprofen. In an October 2008 private medical report, the Veteran was treated by a private neurologist, Dr. H.L., M.D. This report indicated his primary care physician was still Dr. W.E.B. The Veteran reported having a long standing history of headaches which began in the military. He reported several episodes of head trauma during training in his active service with one two to headaches occurring per week. He stated he had taken a lot of over the counter medications, including ibuprofen, Excedrin and Aleve, which Dr. W.E.B. had stopped, secondary to elevated liver function studies. The Veteran stated that the headaches were biparietal with sharp pain, some associated nausea, and would sometimes cause him to go straight to bed. He was diagnosed with posttraumatic headaches. After a review of the record, the Board concludes that entitlement to service connection for headaches, to include as due to a head injury, is not warranted. While the Veteran has a current diagnosis of posttraumatic headaches, diagnosed on one occasion in October 2008, headaches, a head injury or residuals of a head injury were not shown in service or for many years thereafter, and there is no credible and probative lay or medical evidence of a nexus between the Veteran's headaches and his active service, including to any head injury. While not dispositive of the issue of whether service connection may be granted, the service records do not indicate that the Veteran was treated for headaches or a head injury during his active service. In addition, the Board notes that the service treatment reports reflect the Veteran specifically reported having no history of severe or frequent headache or a head injury in both the March 1970 and April 1972 Reports of Medical History. In fact, the April 1972 Report of Medical History reflects that the Veteran only reported a history of hip injury due to a motorcycle accident in 1969 and the service medical officer specifically noted there was no further significant history reported by the Veteran. The post-service medical evidence of record does not demonstrate a diagnosis of a headache disability until October 2008, approximately 36 years after the Veteran's discharge from active service. Even considering the earlier complaint of headaches in the February 2006 private medical report, such evidence indicates an initial complaint of headaches occurred approximately 34 years after the Veteran's discharge from active service. There is no credible and therefore probative evidence which links the Veteran's headaches to service, including to a head injury sustained in service. The Veteran is competent to report that headaches began in service and that he was injured in the head during his active service, and his reports are competent evidence of a head injury in service and a continuity of headaches since active service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, he is not competent to diagnose or medically attribute any in-service symptom or incident to a current disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The evidence does not demonstrate that the Veteran has the requisite medical competence to identify any etiology of his headaches. Moreover, while competent, the statements that headaches began in service and that he was injured in the head during his active service, are not credible as they are internally inconsistent and are inconsistent with the contemporaneous medical evidence of record. The Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). As to some of the factors that go into making these determinations both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). Most recently, the Federal Circuit ruled that the principle of a continuity of symptomatology discussed in 38 C.F.R. § 3.303(b) does not apply to any disease or condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's headaches are not a chronic disease or condition recognized under 38 C.F.R. § 3.309(a). The earliest indication of headaches in the record was noted in a February 2006 private medical report. In fact, the Veteran's service treatment records do not reflect any complaints, treatment or findings headaches or a head injury throughout his entire period of active service. In particular, the March 1970 entrance examination and April 1972 separation examination revealed no abnormalities of the head upon clinical evaluation and the Veteran specifically denied any history of headaches or a head injury in either the March 1970 or the April 1972 Reports of Medical History. Therefore, the statements regarding having headaches or a head injury in service are both internally inconsistent with the Veteran's own reported history during his active service and inconsistent with the contemporaneous medical evidence of record. Jandreau, supra. Indeed, the Veteran did report a history of a hip injury in 1969 due to a motorcycle accident in the April 1972 Report of Medical History, at the same time which he specifically denied a history of frequent or severe headache and head injury, and the service medical officer noted that there was no further significant history. The medical records cited are highly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the internally inconsistent statements regarding a history of headaches and a head injury in service and the lack of contemporaneous evidence in this instance diminishes the reliability of the lay statements provided by the Veteran that headaches began in service and that he was injured in the head during his active service and they are afforded no probative value. Accordingly, the preponderance of the evidence is against the claim. Service connection for headaches, to include as due to a head injury, is not warranted and the appeal will be denied. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for headaches, to include as due to a head injury, is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs