Citation Nr: 0814628 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-29 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a dental condition, claimed as mouth damage. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from April 1951 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a personal hearing before the Board in Washington, D.C. in March 2008. The issue of entitlement to service connection for a dental condition 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. VA will inform the veteran if any further action is required on his part. FINDING OF FACT Chronic headaches were not present during active duty or for many years thereafter and the weight of the persuasive evidence does not show that a current chronic headache disability is related to an incident or injury during active duty or to a service-connected disability. CONCLUSION OF LAW A chronic headache disability was not incurred in or aggravated by active duty or by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was satisfied prior to the initial AOJ decision by way of a letter sent to the appellant in January 2006, that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim for service connection and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present appeal, the veteran was provided with notice of what types of information and evidence were needed to substantiate his claim, but he was not provided with notice of the types of evidence necessary to establish an effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on this element, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for headaches, any questions as to the effective date to be assigned are rendered moot. Finally, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records and Social Security records. The appellant was afforded appropriate VA examinations. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In a January 2006 statement, the veteran reported that he had no further evidence to submit in support of his claim. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disabilities which are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected condition, will be service connected. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Analysis In September 2005, the veteran submitted a claim, in part, for service connection for headaches. He wrote that he was taking sinus pills to help alleviate his frequent headaches. The service medical records do not document the presence of chronic headaches. The veteran reported problems with headaches on one occasion in July 1953. There were no other references to the presence of headaches in the service medical records. No pertinent abnormalities were noted on the report of the April 1954 exit examination. Clinical evaluation of the neurological system was determined to be normal at that time. There is no medical evidence of the presence of headaches for many years after the veteran's discharge. The first reference to problems with headaches is dated in 2001. Significantly, these clinical records which reference headaches also indicate that the disability began many years after the veteran's discharge. A clinical record dated in February 2001 reveals the veteran was seeking treatment, in part, for "new headaches." The headache was described as a dull ache over the entire head which had not gotten progressively worse. The pertinent impression was nebulous complaints of pain in the head. In July 2001, the veteran reported problems with occasional right sided temporal headaches. He informed the clinician that he never had a headache until a few months prior. The headaches were not increasing in nature and did not happen at night. There were no associated neurological symptoms. The impression at that time was intermittent headaches. In May 2002, the veteran presented with complaints of persistent right side headaches for approximately one year. The pain had increased within the last three to four weeks and was no longer controlled with Tylenol. There was no associated visual disturbance. The headache frequently was worse at night. The headache was not associated with neck stiffness. The veteran reported that, when his sinuses were clear, his headaches disappeared. A July 2002 clinical record reveals the veteran reported his headache began approximately one year prior. They occurred during the day or night and were located in the right fronto- parital region. They lasted from 30 minutes to 3 hours. The headaches were associated with right posterior neck pain and were worse with nose congestion. There was no associated phonophobia or photophobia. The assessment was right sided headache. The clinician found that the character and quality of the headache pain were not consistent with a vascular headache such as a migraine or cluster headache. He found that the pressure like quality and association with nasal stuffiness and neck motion were suggestive for muscle contraction headache triggered by pain in the cervical spine or nose. The clinician found the headache was very unlikely due to intracranial brain disease based on a normal examination and normal computed tomography examination. The veteran's own testimony is that his headaches began after service. At the time of his March 2008 hearing, the veteran reported that his headaches began four or five years prior. The Board notes that the veteran reported at the time of the September 2006 neurological examination that he had had nasal congestion since the in-service motor vehicle accident in 1954 and that with the congestion occurred a headache. To the extent that that evidence indicates the veteran had continuous headache symptomatology since active duty, the Board finds the allegation is outweighed by the other clinical evidence of record and the veteran's own testimony which places inception of the headaches to many years after discharge. The clinical records dated in February 2001, July 2001, May 2002, and July 2002, all reference statements from the veteran indicating that his headaches began sometime in 2000 or 2001. The Board places greater probative weight on the veteran's self-reported history as recorded in the clinical records over the veteran's subsequent allegations and testimony. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The records are unequivocal in documenting that the veteran reported his headaches began many years after his discharge from active duty. Based on the above, the Board finds that there is no chronicity of headache symptomatology from the time of the veteran's discharge to the present. The veteran's own testimony and clinical records demonstrate the veteran's headaches began many years after discharge. There is also no competent evidence of record which links currently existing headaches to the veteran's active duty service. The only evidence of record which links currently existing headaches to the veteran's active duty service is the veteran's own allegations and testimony. The veteran opined that headaches were related to his nosebleeds. He also opined that his headache disability was due to or aggravated by his service-connected fracture of the maxilla and zygomatic arch. While a lay person, such as the veteran, can be competent to discuss observable symptoms, here, the question as to whether a headache disorder is etiologically related to a fracture of the maxilla and zygomatic arch or to his nosebleeds requires competent medical evidence. The veteran testified that he was informed by a VA doctor in Baltimore that his headache was likely due to sinus problems. As to that contention, it must be noted that the Court has held that a lay person's statement about what a physician told him or her, i.e., "hearsay medical evidence," cannot constitute the medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995). In this regard, the Board notes that, aside from the veteran's own testimony on the matter of what physician reported to him, the record is devoid of evidence substantiating any such admission by medical personnel. In addition, the weight of the persuasive evidence does not indicate that the veteran's headaches were due to his active duty service or a service-connected disability. A VA neurological examination, conducted in September 2006, included the impression that the veteran's headaches were more typical of a sinus disorder than any suggestion of posttraumatic headaches. The examiner further opined that there was no evidence of post-concussive syndrome and no evidence of migraines. It was the examiner's opinion that, more likely than not, the headaches were related to sinus congestion and the persistent use of sinus medication. Accordingly, service connection is not warranted on a direct basis. The Board notes that service connection has been granted for residuals of maxilla and zygomatic arch fracture with chronic right sided epistaxis in September 2006. While the veteran has argued that his headaches were linked to the epistaxis, his opinion as to the etiology is without probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no competent evidence of record which links the veteran's headaches to epistaxis. The examiner who conducted the September 2006 VA examination found that the headaches were due to nasal congestion, not nasal bleeding. A VA examination of the veteran's sinus was conducted in September 2006. The veteran complained of right sided nose bleeds. The examiner noted the veteran was involved in a motor vehicle accident in 1954 which fractured the maxilla and nose. Surgery was attempted in 1984 to control the bleeding but this was not successful. The nose bleeds were right sided and occurred with some pressure to the right side of the head. Physical examination was normal and did not reveal any evidence of bleeding. The impression was chronic right sided epistaxis of uncertain etiology. The examiner opined that the epistaxis, as likely as not, was created by trauma from the motor vehicle accident in 1954. There was no indication in this examination report that a sinus disorder was linked to the veteran's headaches. Thus, the Board finds that service connection is not warranted on a secondary basis for headaches. 38 C.F.R. § 3.310. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to service connection for headaches. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). ORDER Service connection for a chronic headache disability is not warranted. The appeal is denied. REMAND In November 2005, the veteran submitted a statement indicating that he damaged his mouth and lost his top tooth as a result of a motor vehicle accident which occurred during active duty. He reported that he was treated with a bridge which caused him to lose three more top teeth. Eventually, he had to have all of his top teeth removed. The veteran also alleged that a bottom tooth was injured in the motor vehicle accident which occurred during active duty. Reportedly around 1984, the bottom tooth was capped at the Baltimore VA dental clinic. The RO interpreted this statement as a dental claim to include damage to the mouth and missing tooth. A March 2006 rating decision denied service connection for dental condition for treatment purposes, claimed as mouth damage. A claim for service connection for the dental condition for compensation purposes was not adjudicated at that time. Initially, the Board notes that the veteran has submitted prior dental claims and also has received treatment from VA for dental problems. It is not apparent to the Board what the current statuses of the veteran's dental claims are and whether service connection has already been granted for any dental disability. In May 1956, the RO denied the veteran's application for outpatient dental treatment, noting that the application was not received within the pertinent time period. However, subsequent to that, the veteran was treated by VA for dental problems. A dental rating sheet dated in February 1984 indicates that the veteran had trauma to tooth number 8. There is no evidence of record, however, which indicates that the veteran was informed of this decision nor is there is any other indication that service connection has been granted for trauma to tooth number 8. VA clinical records dated in April 2002 indicate the veteran was seen for dental treatment under Class III. Dental treatment under Class III is defined as those having a dental condition professionally determined to be aggravating disability from an associated service- connected condition or a disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability. The determination that the veteran was eligible for Class III dental treatment is not associated with the claims file. In July 2004, it was noted that the veteran had been receiving dental care from the VA medical center in Baltimore but was moving and would receive VA dental treatment in South Carolina. This clinical record specifically indicated that the veteran's treatment plan had been approved by a clinic administrator or designee. The veteran testified before the undersigned in March 2008 that he had a claim for dental treatment which was denied in 1956 and that he received dental treatment from VA in 1961 and in 1983. He also indicated that he had a claim regarding his dental problems which was denied in 1962. The veteran referenced a decision dated February 22, 1984 which he seemed to indicate granted service connection for tooth number 8. He also testified that he had a notice of entitlement to dental care but had lost this document. The Board finds that the prior decision(s) pertaining to the veteran's dental claims should be obtained and associated with the claims file. The RO must determine, in the first instance, what claims for dental conditions have been submitted by the veteran and what are the outcomes of those claims. It further appears from the veteran's allegations that he is also claiming entitlement to service connection for dental problems for compensation purposes. He has alleged that the in-service motor vehicle accident which damaged a tooth eventually resulted in the loss of all of his top teeth. The Board notes the RO originally reported that it was adjudicating a claim of service connection for dental treatment purposes only. A review of the most recent supplemental statement of the case, dated in September 2006, reveals service connection was denied as there was "no evidence of loss of a tooth or teeth with loss of substance of the mandible and or maxilla bone." This analysis by the RO pertains to claims for service connection for compensation for dental problems. See 38 C.F.R. § 4.150 Diagnostic Code 9913. It is not clear to the Board exactly which claim the RO has adjudicated - one for compensation or one for treatment or both. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. It is not clear that the veteran has been advised that there is a difference between a claim for a dental disorder for compensation purposes and a claim for treatment purposes, although the RO has stated that his claim has been interpreted as a claim for treatment purposes only. The Board finds the RO must provide the veteran with this information. Thereafter, the RO must contact the veteran to clarify his claim or claims regarding his dental condition. VA examinations were conducted in connection with the veteran's claim. The examination reports, however, are inadequate for adjudication purposes. At the time of a December 2005 VA examination, the examiner specifically reported that he did not have access to the claims file. It also appears that the examiner who conducted a September 2006 VA dental examination did not have access to the veteran's claims file. The Court has held that post service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board finds that the veteran should be afforded another VA examination in which the examiner has access to and reviews all the evidence in the claims file. 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The Board finds the VCAA requires additional notification be sent to the veteran pertaining to his dental claim particularly notification of the specific elements required to establish service connection for a dental condition. Accordingly, this matter is REMANDED for the following action: 1. Issue a VCAA notice letter on the issue of entitlement to service connection for dental claims for both compensation and for treatment purposes which satisfies all VCAA notice obligations in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002), 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159, and any other applicable legal precedent. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate his service connection claim and inform him of the division of responsibility between him and VA in producing or obtaining that evidence or information. The veteran should also be advised to send to VA all evidence in his possession which pertains to the appeal. He should also be provided notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The notice must inform the veteran of the criteria for establishing service connection for compensation for dental claims and the criteria for establishing service connection for treatment purposes only for dental claims. 2. After providing the veteran with notification of the difference between dental claims for compensation purposes and dental claims for treatment purposes, contact the veteran to clarify the nature of his dental claim or claims. 3. Determine the current status of the veteran's dental claims to include if service connection has been granted for any dental disability for compensation and/or treatment purposes and also determine the basis for the veteran receiving dental treatment under Class III. 4. Schedule the veteran for an appropriate VA dental examination based on the nature of the veteran's dental claim or claims (either for compensation and treatment or for treatment only). Direct that the claims folder and a copy of this Remand should be made available to the examiner for review in connection with the examination. The dental examiner must indicate that pertinent documents in the claims folders were reviewed, including the claims folder and the copy of this Remand. 5. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If any benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case (for any issue on appeal) and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs