Citation Nr: 0809715 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-05 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic headaches. 2. Entitlement to service connection for a low back disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from July 1966 until June 1969. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. In order to be eligible for most VA benefits, a former service member must have been discharged or released from active duty under conditions other than dishonorable. The Board notes that the veteran was initially discharged in June 1969 "Under Conditions Other Than Honorable." At that time, the veteran's record contained punishments for assault, violation of orders, disrespect, and unauthorized absence, as well as a special court martial for unauthorized absence subsequent to his return from service in Vietnam. However, in light of the veteran's combat wounds as well as his length of service, which showed no infractions prior to his wounds, the veteran's discharge status was upgraded to "Under Honorable Conditions." See May 1970 Administrative Decision. The veteran is therefore not barred from receiving VA benefits. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's chronic headaches have been shown by competent clinical evidence to be causally related to the veteran's active service. 2. The competent evidence of record does not demonstrate that the veteran's low back disability is causally related to the veteran's active service. CONCLUSIONS OF LAW 1. Chronic headaches were incurred in active service. 38 U.S.C. §§ 1110, 1154, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2007). 2. A low back disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. § 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, a September 2004 letter from the AOJ to the appellant satisfied VA's duty to notify. The letter informed the veteran of what evidence was necessary to establish entitlement to the benefits he claimed and advised him of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claims and what he could do to assist. In addition, the appellant was asked to provide any evidence in his possession that pertained to his claims. Notably, the veteran was not informed that a disability rating and an effective date would be assigned in the event he was awarded the benefits sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473. However, as this decision denies the veteran's claim for service connection for a low back disability, any questions as to the appropriate disability rating or effective date to be assigned have been rendered moot. In addition, although the Board is granting the veteran's claim for service connection for chronic headaches, no disability rating or effective date is assigned herein. Therefore, the veteran has not been prejudiced by the absence of notice on these elements. Accordingly, assuming, without deciding, that any error was committed with respect to the duty to notify, such error was harmless. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records, Social Security Administration (SSA) records, and reports of VA and private post-service treatments and examinations. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder and the veteran was afforded VA medical examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has carefully reviewed such statements and medical records, and has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Legal Criteria and Analysis Service connection will be granted for disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove direct service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). A. Chronic Headaches After a review of the evidence, the Board has determined that service connection is warranted for chronic headaches. The Board finds that, with resolution of doubt in the veteran's favor, the veteran has shown by competent medical evidence that his chronic headaches were caused by, or etiologically related to, his period of active service. The Board's reasons for this decision are detailed below. The Board first examines the record to determine whether the veteran has provided competent medical evidence of a current disability. The veteran was afforded a VA examination in December 2005. The examiner noted that the veteran complained of chronic headaches three to four times per month. The headaches were throbbing and pounding in nature, and, the examiner determined, were not migraines. Providing the veteran with the benefit of the doubt, the Board finds that the first element of service connection, a current disability, has been met. The Board's next inquiry focuses on the possible incurrence of an in-service injury or disease. The veteran asserts that in December 1967, while on active duty in the Republic of Vietnam, he was thrown from a bridge during an explosion, rendered unconscious, and suffered a concussion. The veteran's contentions are supported by personnel records, which reflect that he served in the Republic of Vietnam. The veteran's DD Form 214 indicates that he received the National Defense Service Medal, the Vietnam Campaign Service Medal, the Purple Heart, the Combat Action Ribbon, and the Presidential Unit Citation. In addition, the veteran's accounting of events matches those recounted in the veterans service medical records (April 1968 and November 1968 examination notes), at the veteran's psychiatric examination in October 1970, and in an Administrative Decision in May 1970. Under 38 U.S.C.A. § 1154(b), if a veteran engaged in combat with the enemy during active service, his lay statements are considered sufficient proof of the incurrence of an injury, if consistent with the circumstances, conditions, or hardships of such service. The veteran's statements, however, may be rebutted by clear and convincing evidence to the contrary. In this case, the veteran's receipt of the Combat Action Ribbon is acceptable evidence that the veteran engaged in combat. See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section D, para. 13(d). The veteran's testimony is found to be credible and consistent with the circumstances of his service. As there is no evidence to the contrary, the Board finds that the veteran's lay statements are sufficient proof of the incurrence of this in-service injury. Therefore, the second requirement of service connection has been fulfilled. As the veteran currently suffers from chronic headaches and an in-service injury has been found to have incurred, the Board now must carefully examine the record and determine whether evidence exists of a nexus between the chronic headaches and the injury suffered in service. The veteran's service medical records are absent of any complaints of headaches. However, the record reflects that the veteran complained of headaches soon after discharge. At an October 1970 psychiatric examination, the veteran relayed that he suffered headaches once or twice a month in both temples. He reported that they started and remained severe, and were throbbing. The headaches were not relieved by headache medicine, and sleep was the only way the veteran could find relief. Private medical records also show that the veteran complained of headaches in 1993. See July 1993 Progress Notes of P.V.B., C.D. In addition, a private examiner diagnosed the veteran with persistent headaches following an examination in March 2004. See March 2004 Disability Determination Examination Report of Y.H.H., M.D. The Board notes that the VA examiner who assessed the veteran did not conclude that the veteran's chronic headaches are related to service. The veteran was afforded a VA examination in December 2005, where he complained of severe, throbbing, pounding headaches three to four times a month. While the examiner recognized the existence of the veteran's headaches, he concluded that he can not resolve the issue of whether the veteran's current headaches can be attributed to active service without resorting to mere speculation. Notably, however, while the examiner could not positively link the veteran's disability to service, the examiner was also unable to conclude that the veteran's chronic headaches are unrelated to service. In situations where there is an approximate balance of positive and negative evidence, the Board provides the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Here, chronic headaches clearly exist, as does an in-service injury. The record reflects that the veteran complained of headaches within two years of discharge from service, and that other complaints of headaches were made in years following. In addition, the VA examiner was unable to rule out the veteran's service as the cause of his chronic headaches. As a result, the Board must resolve the benefit of the doubt in the veteran's favor and find that service connection is in order. 38 U.S.C.A. §§ 1110, 1154, 5107. B. Low Back Disability In order to establish entitlement to direct service connection, the veteran must provide medical evidence of a current disability, an in-service incurrence of an injury or disease, and a nexus between the disability and in-service incurrence. In this case, the veteran was afforded a VA examination in December 2005. The examiner diagnosed the veteran with degenerative disc disease of the lumbosacral spine with disc space narrowing at L5-S1. Based on this, the Board finds a current low back disability has been clinically demonstrated. In addition, as previously established, it is conceded that the veteran was injured while engaging in combat activity in the Republic of Vietnam. See 38 U.S.C.A. § 1154(b). Thus, the first and second requirements for service connection have been met. The last element of service connection, a nexus between a current back disability and an in-service trauma, is also necessary to warrant service connection. As previously noted, it is conceded that the veteran engaged in combat activity with the enemy. 38 U.S.C.A. § 1154(b). However, the fact that the veteran engaged in combat does not, by itself, establish a basis for a grant of service connection for a low back disability. Section 1154(b) does not establish service connection for a combat veteran; rather it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). In this case, the veteran service medical records are negative for any complaints of or treatment for a back injury. At a February 1969 examination, the veteran's spine was evaluated as normal by the examiner. In addition, a November 1968 examination report notes that the veteran sustained injuries in Vietnam, including a concussion, harm to his hearing, and minor wounds to the right lateral abdominal area. However, the summary fails to note any complaints related to the veteran's back. See November 1968 Clinical Records. Furthermore, following service the claims file shows no documented complaints or treatment for a back disability until 1990, when private medical records note that the veteran suffered from an "acute lumbosacral strain" and "bilateral paralumbar spasms." The veteran was also afforded a VA examination in December 2005, wherein the veteran was diagnosed with degenerative disc disease of the lumbosacral spine with disc space narrowing at L5-S1. However, the examiner concluded that he could not resolve the issue of whether the veteran's current disability could be attributed to active service without resorting to mere speculation. In making its decision, the Board also notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there are roughly 20 years between service discharge and findings of a low back disability. There also exists no competent clinical opinion relating the veteran's current low back disability to service. The only evidence supporting such a claim is the veteran's own contentions. While the veteran contends his low back disability is service related, he is a lay person with no medical training, and as such is not competent to express a medical opinion as to causation. Only medical professionals are competent to express opinions as to medical causation, and thus the veteran's opinion lacks probative value. Espiritu, 2 Vet. App. at 494. The Board recognizes that the VA examiner could not come to a conclusion without resorting to speculation. However, leaving open the possibility that the veteran's disability could be related to service does not constitute a competent medical opinion of causation. It is, as the examiner stated, simply speculation. There is no competent evidence of record finding that the veteran's low back disability is causally related to his service and, thus, the third requirement of service connection is unmet. Therefore, the Board finds that service connection for a low back disability is not warranted. ORDER Entitlement to service connection for chronic headaches is granted. Entitlement to service connection for a low back disability is denied. REMAND The Board notes that a September 2005 rating decision denied the veteran's claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Thereafter, the veteran submitted a VA Form 9, dated in February 2006, and indicated that he wanted to appeal the September 2005 rating decision. This writing may be reasonably construed as a notice of disagreement with the September 2005 rating decision which denied the veteran's claim for TDIU. A statement of the case has not been issued with regard to such issue. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide the veteran and his representative with a statement of the case as to the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs