Citation NR: 9708553 Decision Date: 03/13/97 Archive Date: 03/25/97 DOCKET NO. 94-10 976 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for chronic headaches claimed as due to exposure to Agent Orange. 2. Entitlement to service connection for an aneurysm/circulatory disorder claimed as due to exposure to Agent Orange. 3. Entitlement to service connection for a mood/personality disorder claimed as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. F. Chiappetta, Jr., Associate Counsel INTRODUCTION The veteran served on active duty from January 1969 to November 1972. In April 1973, the veteran asserted a claim of service connection for headaches. An RO rating action denied this claim in July 1973. In October 1992, the veteran submitted claims for service connection for circulatory problems, migraine headaches, aneurysm, vision, mood, and personalty changes due to Agent Orange exposure. This case comes to the Board of Veterans’ Appeals (Board) from an April 1993 rating decision, which, in pertinent part, found that the veteran had submitted new and material evidence to reopen the claim for service connection for headaches; accordingly, this claim will be handled on a de novo basis. The RO also denied a claim for service connection for an aneurysm/circulatory disorder and mood/personality disorder. The Board remanded the case to the RO in July 1996 for due process reasons. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has headaches, an aneurysm/circulatory disorder, and mood/personality disorder which were either incurred in service or are the residuals of exposure to Agent Orange. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim of service connection for headaches. It is also the decision of the Board that the veteran has not met the initial burden of submitting sufficient evidence to justify a belief by a fair and impartial individual that he has presented a well grounded claim of service connection for a mood/personality disorder and an aneurysm/circulatory disorder. FINDINGS OF FACT 1. Chronic headaches were manifest during service. 2. The veteran has presented no competent medical evidence to show that an aneurysm/circulatory disorder or a mood/personality disorder are due to disease or injury during service. 3. The veteran had active service in Vietnam during the Vietnam Era. He does not have a disability that is recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 4. The veteran's claim that there is a causal connection between an aneurysm/circulatory disorder or a mood/personality disorder and exposure to herbicide agents during Vietnam service is based solely on lay opinion. CONCLUSIONS OF LAW 1. Chronic headaches were incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.303(b) (1996). 2. A well-grounded claim of service connection for an aneurysm/circulatory disorder and a mood/personality disorder has not been submitted. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.303, 3.309(e) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. On his December 1968 examination prior to enlistment, the veteran was evaluated as psychiatrically normal and his head, heart, and vascular system were evaluated as normal. A review of his service medical records reveals that in February 1969, the veteran complained of a headache and a productive cough. The impression was early nonbacterial pneumonia. In March 1971, the veteran complained of migraine headaches in the temporal regions and in both eyes. The impression was migraine cephalalgia. There was no record of findings or complaints indicative of an aneurysm/circulatory condition or mood/personality changes during service. On his July 1972 examination prior to separation, the veteran was noted to be psychiatrically normal and the veteran's head, heart, and vascular system were evaluated as normal. The examiner’s notes indicated that the veteran had headaches on occasion. In April 1973, the veteran submitted a claim for service connection for headaches secondary to an eye injury in service. A July 1973 VA examination report indicated that the veteran gave a history of a 1969 eye injury which was followed by headaches every Wednesday for three months. He reported that during the past several months, the headaches had returned. The pain was noted to be located behind the right eye, and the veteran reported some nausea but no vomiting. The diagnosis was headaches alleged with no neurological basis found on this examination. A chest X-ray at this time was normal, and the heart was noted to be normal in size, rate, rhythm, tones, and peripheral pulsation, with no murmurs heard. Private hospital records from August 1981 show that the veteran was admitted after he collapsed and became confused at home. A CT brain scan was normal. Testing revealed an aneurysm arising from the supraclinoid segment of the right internal artery. A craniotomy and clipping of the aneurysm were performed. Thereafter, the veteran reported a fair amount of headache but otherwise became fully oriented and alert. A November 1984 private report from the Charlotte Neurosugical Associates (CNA) indicated that the veteran was for complaints of continued tension/vascular headaches which lasted for several days at a time. The same complaints were noted in an April 1985 treatment report. Medication was prescribed. On a June 1985 private examination report from the Mountain Neurological Center (MNC), the veteran was noted to have a history of severe headaches which he stated dated back to 1973 and 1974. In January 1982, the veteran reportedly had recurring headaches associated with nausea. By August 1983, he was having more frequent headaches lasting four to six hours. Medication was prescribed which continued to be largely ineffective. Since November 1984, headaches have been much more frequent and have lasted about 24 hours. On mental status examination, the veteran was noted to be alert, oriented, and clear. He showed no aphasia and his affect seemed appropriate. An examination, the cranial nerves were normal and the impression was tension vascular headaches. The examiner did not feel that these headaches were likely to be directly related to his history of an aneurysm or surgery and suspected that the continuing stress relating to his disability status and compensation status contributed to the frequency of these episodes. Recommendations included increasing the prescription and a follow-up examination. An electroencephalogram report indicated slight abnormalities of the focal theta slowing seen in the right temporal region during drowsiness. It was noted that this may correlate with his previous aneurysm rupture and surgery. On an August 1985 follow-up visit to the MNC physician, some reduction in the frequency of headaches was reported and medication was continued. It was noted that the veteran had two bad headache sieges accompanied with visits to Virginia and his mother in law. A September 1985 treatment report noted intractable headaches. The veteran reported that he has had a daily headache for 40 days. It was noted that the veteran was on daily medication, but did not respond to medication thus far. The veteran's wife reported a great deal of instability and a possible psychiatric appraisal was indicated. Outpatient treatment records from October 1985 indicate that the veteran was seen with complaints of a headache for 90 days. VA outpatient treatment records from June 1987 through September 1988 noted that the veteran continued to complain of headaches and nausea. Various medications were provided. Diagnoses included headaches, chronic vascular headaches, and migraine headaches. A VA discharge summary indicated that the veteran was hospitalized from October to November 1988 with a diagnosis of migraine headaches, status post right internal carotid artery aneurysm clipping in 1981. Mental status examination and neurologic exam were noted to be quite normal. On physical examination, no bruits or masses were noted on the head and neck, and the veteran's chest was clear to auscultation. The veteran's heart sounds were regular without murmur. The veteran was admitted for reassessment of his therapy for the cycle of increased headaches. On the day of admission the veteran had a severe headache and vomited oral medications. Minimal headaches were noted on following days. VA outpatient treatment records from April and August 1989 show continued treatment for headaches with medication. The impression was poorly controlled migraine headaches. A December 1989 private neurological examination report from Mecklenburg Neurological Associates (MNA) noted that the veteran had headaches as early as grade school, but that they were exacerbated after he was discharged from the Air Force in 1974. It was noted that they have gotten worse over the past year and a half. He reportedly has a nagging headache all of the time with bad headaches every two weeks. Severe headaches were reportedly associated with nausea. Numerous medications have been attempted. A left Babinski’s sign was noted which the examiner thought was related to his previous aneurysm. The impression was chronic severe headaches. In a January 1991 statement, the veteran’s in-laws reported that the veteran did not have headache problems until he returned from Vietnam. In a February 1991 statement, the veteran's mother indicated that he did not have headaches prior to going to Vietnam, but that he did have headaches on his return. In March 1991, the veteran's wife submitted a statement asserting much the same information. A May 1991 private medical examination report from the MNA noted that the veteran had a 12 year history of “severe migraine type headache problems”. It was reported that the veteran had multiple evaluations by a neurologist and the VA. Treatment was reportedly minimally symptomatic and most preventive measures were unsuccessful. The diagnosis was severe episodic headaches. March 1992 private outpatient treatment records from the MNA indicated that the veteran was doing well. It was noted that over the past few years the veteran has had remarkably few headaches. In October 1992, the veteran asserted that exposure to Agent Orange in Vietnam had resulted in circulatory problems, migraine headaches, aneurysm, mood, and personality changes. A February 1993 treatment record from the MNA noted that the veteran's headaches were under excellent control. The private physician indicated that he may try to taper the veteran's medication and substitute something that might protect his stomach a bit more. An October 1993 letter from a private physician indicated that he had been the veteran’s family physician since 1974, that the veteran has been treated consistently for migraine pattern headaches, and that the veteran was now under the care of a neurologist. On an October 1993 VA form 9, the veteran asserted that he had headaches associated with an eye injury while on active duty, that he had headaches during the presumptive period, and that he had constant medical treatment for headaches since 1974. He also claimed that he had a circulatory condition, an aneurysm, and a mood/personality condition due to exposure to Agent Orange. II. A. Service connection for headaches. The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. All relevant facts have been properly developed. Therefore, the VA’s statutory duty to assist the veteran in developing evidence pertinent to his claim has been satisfied. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A review of the veteran's service medical records shows that he was treated for headaches in association with a cough in February 1969, and that migraine headaches were diagnosed in March 1971. On the veteran's July 1972 report of examination prior to separation, the examiner noted that the veteran had headaches on occasion. The veteran submitted a claim of service connection for headaches within 5 months of separation from service. A review of the post service medical evidence reveals that the veteran was examined for headaches in July 1973, at which time he gave a history of headaches since 1969. The medical records show ongoing treatment for headaches from 1981 to the present. Additionally, a letter from the veteran's private physician since 1974 indicates that he had consistently treated the veteran for migraine pattern headaches. Furthermore, statements from the veteran's family report that the veteran suffered from headaches since his return from Vietnam. The competent medical evidence, in concert with credible supporting lay evidence, shows the veteran currently suffers from chronic headaches which had an onset during service. Accordingly, the evidence supports the veteran’s claim of service connection for headaches. B. Service connection for an aneurysm/vascular disorder and a mood/personality disorder. The threshold question is whether the veteran has met his burden of submitting evidence of well-grounded (i.e. plausible) claims. If not, his claims must fail and there is no duty to assist him in the development of his claims. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, the Board finds that the veteran has not submitted evidence sufficient to establish well-grounded or plausible claims of service connection for a mood/personality disorder or an aneurysm/circulatory disorder. Initially, the veteran asserts that he has an aneurysm/circulatory disorder and a mood/personality disorder due to exposure to Agent Orange while in Vietnam. Regulations pertaining to Agent Orange exposure provide for a presumption of exposure to herbicide agents for veterans (such as the veteran) who served on active duty in Vietnam during the Vietnam Era. 38 C.F.R. § 3.307 (a) (6). The regulations also enumerate the diseases for which service connection may be presumed to be associated with exposure to herbicide agents. The specified diseases do not include the disorders claimed by the veteran. 38 C.F.R. § 3.309 (e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1995). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed.Reg. 341 (1994). The United States Court of Appeals for the Federal Circuit determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). Although that case specifically dealt with the list of radiogenic diseases contained in 38 C.F.R. § 3.11 (b), the Board is of the opinion that the Court’s holding has equal application to cases involving herbicide exposure. Thus, despite the fact that the asserted disorders in this case were not included on the list of diseases which have been positively linked with herbicide exposure, service connection may still be established by the more onerous route of showing through competent evidence that the veteran’s disorders were incurred in or was aggravated by service or, if covered under presumptive language, were manifest within the initial post service year. See 38 C.F.R. §§ 3.303(d), 3.307(a), 3.309(a). As a viable claim for the disabilities at issue has not been presented on a presumptive basis due to exposure to Agent Orange, next for consideration is whether the veteran has presented a well grounded claim on a direct service incurrence basis. The United States Court of Veterans Appeals has held that a veteran must submit evidence, not just allegations, in order for a claim to be considered well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The evidence must show that the veteran currently has a disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992) and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). When, as in this case, the issue involves a question of medical diagnosis or causation, medical or otherwise competent evidence is required to make the claim well-grounded. Grottveit v. Brown, 5 Vet.App. 609 (1993). The veteran’s lay statements concerning questions of medical diagnosis and causation are not sufficient to establish a well-grounded claim as he is not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App 492 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The Board notes that personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Thus, for VA benefit purposes, service connection may not be granted for a personality disorder. A review of the medical evidence shows that the veteran has not been diagnosed with a psychiatric disorder. More specifically, although post service medical records indicate that the veteran was under stress, and the veteran's wife reported a great deal of instability and a possible psychiatric appraisal, VA mental status examinations reported that the veteran was alert, oriented, and clear (November 1984) and that he was normal (November 1988). As the veteran does not currently suffer from a psychiatric disorder, there is no competent medical evidence upon which a well grounded claim of service connection for a psychiatric disorder may be based. See Brammer and Rabideau, supra. The veteran was treated for an aneurysm in 1981, more than 8 years after separation from service. There is no competent medical evidence to establish a nexus between this cerebrovascular event many years following service and any disease or injury in service. Moreover, the record is devoid of any evidence of a circulatory disorder. The only evidence which would support the veteran’s claim is found in his statements; however, lay evidence is inadequate to establish a medical claim. Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) of presenting a well grounded claim of service connection for an aneurysm/circulatory disorder. ORDER Entitlement to service connection for headaches is granted. Service connection for an aneurysm/circulatory disorder and a mood/personality disorder is denied as a well-grounded claim has not been presented. _______________________________ JEFFREY A. PISARO Acting Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -