Citation Nr: 0810923 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 97-13 610A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for headaches, to include as secondary to the service-connected residuals of a fractured left mandible. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from May 1974 to August 1979. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). Thereafter, the veteran's file was transferred to the RO in Columbia, South Carolina. The veteran testified at a hearing before a Hearing Officer at the RO in August 1997. This matter was before the Board in October 2003 and November 2006, and was then remanded for further development. FINDING OF FACT The veteran's headaches are etiologically related to his service-connected residuals of a fractured left mandible. CONCLUSION OF LAW With resolution of reasonable doubt in the veteran's favor, the veteran's headaches are proximately due to or the result of his service-connected residuals of a fractured left mandible. 38 C.F.R. §§ 3.102, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. Given the disposition reached in this case, the Board finds that VA has met its duty to assist the veteran in the development of the claim on appeal under VCAA. Pertinent Law and Regulations 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) (2007). 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). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis With respect to Wallin element (1), current disability, the claims folder is replete with medical evidence diagnosing the veteran with chronic (mixed) headaches, including on VA examination in August 2004. Therefore, element (1) has been satisfied. With respect to element (2), service connection is in effect for undisplaced fracture of the left mandible and limitation of motion of the temporomandibular joint disease (TMJ). With respect to Wallin element (3), medical nexus, there is conflict in the record in regards to whether the veteran's headaches are secondary to his service-connected left mandible fracture residuals. Following a VA examination in September 1997, the VA examiner opined: It is felt at this time that the headaches are not related to the fracture of the mandible. His history reveals that the headaches were present before the fractured mandible, not as severe; they became severe approximately ten years after the fractured mandible and are less intense now since he has been on Zoloft or antidepressant therapy. At this time we will say it is not likely that the headaches are secondary to the fractured mandible. As far as the etiology due to another cause, obviously I feel they are due to another cause and at this time I would feel that these headaches are more secondary to his other problems other than his fractured mandible. The veteran was afforded another VA examination in August 2004. The VA examiner reported a diagnosis of chronic mixed headaches. She stated: I suspect there is a migrainous component with associated nausea and vomiting, though he does describe some cluster-like features of tearing and nasal drainage with the headache. I think the overall picture is more of a vascular headache, probably migrainous. The VA examiner also diagnosed "jaw pain and headache associated with chewing, talking, et cetera." Regarding this diagnosis, the examiner commented that "[w]hile this may be a migrainous problem, he certainly seems to relate his discomfort to his jaw injury." In a November 2005 addendum, the August 2004 VA examiner stated that the headaches were not attributable to "military service," but that the jaw pain was related to the mandible fracture. In March 2006, after reviewing the results of a magnetic resonance imaging (MRI) examination of the brain done in February 2005, the VA examiner indicated that her opinion regarding the veteran's headaches and jaw pain had not changed. She still contended that the veteran was complaining of two different types of discomfort - chronic mixed headaches and "jaw pain and headache with chewing, talking, etc." She acknowledged that the jaw pain that he described could very well be related to the prior jaw injury. In July 2007, the same VA examiner again reviewed the claims file and reiterated her opinion that the veteran's mixed headaches were not related to the left mandible fracture. Upon review, the Board acknowledges the opinions provided by the VA examiners that the veteran's headaches are unrelated to his service-connected left mandible fracture; however, it cannot overlook the fact that on two occasions the August 2004 VA examiner indicated that the veteran had "jaw pain and headache" which was related to the left mandible fracture. While this suggests that the veteran experiences different types of headaches, with the mixed headaches being unrelated to service, it remains that the VA examiner felt that the left mandible fracture did result in jaw pain and headaches. Resolving doubt in the veteran's favor, the Board finds the examiner's statement that the veteran has jaw pain and headache that is related to service-connected jaw injury provides sufficient medical nexus between the veteran's right foot disability and a service-connected disability. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In short, Wallin element (3) has been met with respect to the headaches. Since all three Wallin elements are satisfied with respect to the headaches, service connection is granted for that disability secondary to service-connected disabilities is granted. The appeal is allowed to that extent. ORDER Entitlement to service connection for headaches is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs