Citation Nr: 0811288 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 02-20 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) arose from August 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (the RO) which denied entitlement to the benefits sought. Procedural history The veteran served on active duty from September 1967 to August 1969. In February 2000, the RO received the veteran's claim of entitlement to service connection for headaches. In August 2000 the RO, in pertinent part, denied entitlement to service connection for headaches. The veteran disagreed with that decision and initiated this appeal. This matter was previously before the Board in July 2004. At that time it was remanded to the Agency of Original Jurisdiction (AOJ) via the VA Appeals Management Center (AMC) for additional development. Thereafter, the claims folder was returned to the Board for further appellate review. In March 2006, the Board determined that the state of the record again required remand for additional development. In October 2007 the AOJ issued a Supplemental Statement of the Case (SSOC) which continued to deny the veteran's claim. The matter has again been returned to the Board. Other issues In its March 2006 decision, the Board denied the veteran's claims of entitlement to service connection for hypertension and for a lumbar spine disability, as well as his claim of entitlement to an increased disability rating for service- connected residuals of an index finger fracture. The veteran has appealed the denial of those claims to the United States Court of Appeals for Veterans Claims (the Court). Those matters are currently pending before the Court and are no longer before the Board. The veteran's appeals as to two other issues, the propriety of a VA dental decision dated April 28, 1970 and entitlement to service connection for dental trauma for the purposes of VA dental treatment, were withdrawn by the veteran in June 2005. See 38 C.F.R. § 20.204 (2007). FINDINGS OF FACT 1. The competent and probative medical evidence of record does not attribute the veteran's headaches to his military service or any incident thereof, to include in-service facial injuries. 2. The competent and probative medical evidence of record supports a conclusion that the veteran's pre-existing head injury was not aggravated during or due to his military service. CONCLUSIONS OF LAW 1. The veteran is not entitled to the presumption of soundness upon entry into service. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304 (2007); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 2. Headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007); VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for headaches. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Stegall considerations As was noted in the introduction above, the veteran's claim was the subject of July 2004 and March 2006 Board remands. The July 2004 remand was undertaken so that a Statement of the Case could be issued. This was accomplished in June 2005. The March 2006 Remand was undertaken so that additional medical evidence could be obtained regarding the aggravation of any pre-existing headache condition. The AOJ was then to readjudicate the claim. A VA medical opinion was obtained in May 2006, and the veteran's claim was readjudicated in an October 2007 supplemental statement of the case. The Board has therefore determined that all of the additional development specified in both the July 2004 and the March 2006 remands have been completed. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Duty to notify The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in letters dated April 4, 2002, February 8, 2003 and July 23, 2004. In these letters, the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain all evidence kept by the VA and any other Federal agency. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The VCAA letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide an adequate description of the records as well as authorization for records not held by the Federal government. Additionally, the letters specifically informed the veteran of the criteria of a successful claim of entitlement to service connection . The April 2002 VCAA letter specifically notified the veteran that he could submit or describe any additional evidence that may be relevant to his claim: "Tell us if you know of any additional information or evidence that you want us to try to get for you." The letter went on to invite the veteran to send evidence directly to VA. See the April 2002 letter, page 3. The July 2004 letter expressly notified the veteran that he could submit or describe additional evidence in support of his claim and specifically informed the veteran "Please provide us with any evidence or information that you may have pertaining your appeal." [Emphasis as in the original.] See the July 2004 VCAA letter, page 3. The February 2003 letter contained a similar request. See the February 2003 letter, page 3. Further, the letters advised the veteran of the procedure for submitting evidence on his own behalf. This complies with the requirements of 38 C.F.R. § 3.159 (b) in that the RO informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In general, a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). However, the initial adjudication of these claims occurred prior to the enactment of the VCAA. Accordingly, preadjudication notice was therefore a legal and factual impossibility. However, the veteran's claims were readjudicated following the issuance of the VCAA letters and after that the veteran was allowed the opportunity to present evidence and argument in response. See the October 2007 SSOC. The Board accordingly finds that there is no prejudice to the veteran in the timing of the VCAA notice. Moreover, the veteran has not alleged any prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), No. 02-1077 (U.S. Vet. App. Dec. 21, 2006) [timing errors such as this do not have the natural effect of producing prejudice and, therefore, prejudice must be pled as to it]. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the 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, element (1), veteran status, is not at issue. The veteran's claims have been denied based on a lack evidence as to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those two crucial elements. Moreover, regarding elements (4) and (5), degree of disability and effective date, these are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. In any event, the veteran received specific notice as to these elements in a May 2006 letter. The Board additionally observes that the veteran appears to be fully conversant with what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained. The veteran's service medical records and VA treatment records have been obtained. The veteran initially identified certain private medical records that he wished to have VA obtained; however, he later advised VA that these records are unavailable. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). So it is in this case. The veteran was afforded VA Compensation and Pension (C&P) examination in February 2003. A VA medical opinion was obtained in May 2006. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this claim has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2007). The veteran advised in his substantive appeals that he did not elect to present personal testimony at a hearing. Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Presumption of soundness/aggravation A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2007). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit held that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3- 2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2007). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2007). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Analysis The veteran is seeking entitlement to service connection for a headache condition. In essence, he contends that his headaches began during service due to an in-service head injury). Alternatively, he contends that a pre-existing head injury noted upon his entry into service was aggravated due to service, leading to his current headache disorder. The Board will address each contention in turn. Service connection In order to establish service connection there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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 February 2003 VA examiner indicated a finding of headaches, satisfying element (1). With respect to Hickson element (2), in-service injury or disease, the Board Will separate discuss injury and disease. The veteran's service medical records document an injury to his eye and bones of his face which was sustained during a fight during service in November 1968. The veteran was struck in the head and face during the fight. He did not lose consciousness and there was no indication of any residuals of this injury during examination undertaken at that time. In-service injury has been shown, satisfying element (2). With respect to in-service disease, there is no objective indication of a disorder manifested by headaches during service. Indeed, there exists no report of in-service complaints of or treatment for headaches on the part of the veteran. Specifically, the veteran's service medical records, including the report of his entrance physical examination, are pertinently negative. However, the veteran has asserted that he suffered from headaches frequently during service, even more frequently after the November 1968 in-service injury. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In that regard, the Board notes that in contrast to the statements currently offered by the veteran in connection with his claim for benefits, the service medical records do not show in-service complaints of headaches. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. The record first indicates a report of frequent headache during the veteran's May 1970 VA examination. No headache disorder was diagnosed at that time, however. Indeed, the first diagnosis of headaches was in February 2003, over three decades after the veteran left military service in August 1969. The Board finds that a preponderance of the evidence supports a conclusion that no headaches disorder existed during service. In short, the Board finds that element (2) has been satisfied to the extent that an in-service disease has been demonstrated; in-service disease has not. Turning to element (3), medical nexus, both the May 2006 VA medical opinion and the February 2003 VA medical examination opinion found that the veteran's headaches were more likely than not due to pre-service head injuries and were not causally related to any in-service head injury. In support of that conclusion, the May 2006 opinion contrasted the severity of the veteran's pre-service head injuries, which involved loss of consciousness, with his less serious in- service injury, which as documented in the contemporaneous service medical records did not include a loss of consciousness. There is no competent medical evidence to the contrary. To the extent that the veteran contends that his current headache condition was incurred during service, it is now well-settled that as a lay person without medical training the veteran is not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, Hickson element (3), medical nexus, has not been satisfied. The veteran's claim of entitlement to service connection of headaches, claimed as being due to the in- service head injury fails, on that basis. Aggravation The veteran has also in essence contended that pre-service head injury residuals were aggravated during service and that service connection should be granted on that alternative basis. As was discussed in the law and regulations section above, in evaluating a claim based on aggravation of a pre-existing disability he Board first must determine whether the statutory presumption of soundness on enlistment has been rebutted by clear and unmistakable evidence. If so, the Board must then determine whether the disability has been aggravated due to service. See 38 U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. § 3.306(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The veteran's history of a head injury was noted in the July 1967 entrance examination report. It appears that the veteran does not challenge that record. Indeed, he has reported two head injuries with loss of consciousness at age 13. Since a head injury was noted upon enlistment examination, the presumption of soundness does not apply. See 38 U.S.C.A. §§ 1111, 1132 (West 2002). The Board again adds that a headache disorder was not noted on enlistment . Concerning aggravation of the pre-existing condition, the veteran's service medical records are pertinently negative for any complaint related to the pre-existing head injury. There is no report of symptoms or flare-ups of symptoms of the head injury, to include headaches; nor is there any report of headaches in the wake of the in-service facial injury. As was described above, the Board places little weight of probative value on the veteran's recent statements concerning frequent headaches in service, becoming more frequent after the November 1968 injury in a personal altercation. Although the official records indicate no headaches on enlistment or at any other time during the veteran's military service, this is not necessarily clear and unmistakable evidence against aggravation, given the in-service facial injuries as well as the complaints of headaches in 1970, within a year after the veteran left service. However, both the February 2003 VA examiner and the May 2006 VA medical reviewer clearly indicated, with reasons, that the veteran's current headache condition is related to the pre-service head injury. These opinions appear to be congruent with the objective evidence of record, which shows no headaches at any time before or during service, as well as evidence indicating that the facial injuries during service did not result in loss of consciousness, with no residuals identified at the time. In short, in order for the claim to be denied it must be established by clear and unmistakable evidence that the headache disability was not aggravated by military service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Such is the case here. Specifically, the contemporaneous records clearly establish that the in-service head injury resolved without symptoms and did not cause the veteran to suffer from headaches. Moreover, the February 2003 VA medical examination opinion did not find any relationship between the veteran's in-service head injury and his current disability. Finally, the May 2006 VA medical opinion, the only competent source of medical evidence to specifically consider whether or not the veteran's in-service head injury aggravated the pre-existing head injury and as such aggravated the current head ache disability found that there was no evidence of aggravation of head aches after the in-service injury. To the extent that the veteran contends that aggravation occurred, he is not a competent source of such evidence. See Espiritu, supra. No other evidence contained in the file supports that assertion. The Board has reached the conclusion that the record, viewed as a whole, shows by clear and unmistakable evidence that the veteran's current headache condition was not aggravated during service. Conclusion In summary, for reasons and based expressed above, the Board concludes that a headache disability did not begin in service, nor was any such disability aggravated during or due to service. Thus, service connection is not warranted. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for headaches is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs