Citation Nr: 0814661 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 00-00 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of a head injury, including headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from October 1976 to March 1977. This appeal to the Board of Veterans' Appeals (Board) is from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. In May 2003, to support his claim, the veteran testified at a hearing at the Board's offices in Washington, DC. The undersigned Veterans Law Judge (VLJ) presided. A copy of the hearing transcript is of record. In October 2003, the Board remanded this case to the RO for additional development. The requested development was completed and the case returned to the Board for further appellate consideration. In October 2006, the Board denied the veteran's claim. He appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2007 order, granting a joint motion, the Court vacated the Board's decision and remanded the case to the Board for further development and readjudication in compliance with directives specified. In November 2007, to comply with the Court's order, the Board requested a medical opinion from a neurological specialist with the Veterans Health Administration (VHA). The designated VHA neurology consultant submitted his opinion in January 2008. The Board sent the veteran a copy of this VHA opinion in February 2008, giving him 60 days to submit additional evidence or argument in response to it. The Board received his medical opinion response form in March 2008 (he had signed and date it in February 2008). With this form, he submitted a copy of a May 2000 statement from N.F., M.D. (this statement was already of record) and personal lay statements from the veteran and his wife. The veteran also indicated he had no further argument and/or evidence to submit and to please proceed with the readjudication of his appeal. His representative more recently submitted an additional brief in April 2008. FINDINGS OF FACT 1. Clear and unmistakable evidence indicates the veteran sustained a head injury prior to service; he even personally acknowledges he did. 2. Clear and unmistakable evidence also shows that residuals of that pre-existing head injury, including headaches, were not made chronically worse by his military service beyond their natural progression. CONCLUSION OF LAW The veteran's pre-existing headaches were not aggravated by his military service. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153 (West Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is requesting service connection for residuals of a head injury, including especially headaches. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate review. The Board will then address the claim on its merits, providing relevant VA statutes and regulations, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, the VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. VCAA notice errors are presumed prejudicial unless VA rebuts this presumption by showing the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the veteran in May 2004 and December 2005. The letters informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining supporting evidence. He was also asked to submit evidence and/or information in his possession to the RO. As for the Dingess requirements, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the underlying claim for service connection. So any questions as to the appropriate downstream disability rating or effective date to be assigned are moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). See also 38 C.F.R. § 20.1102 (harmless error). VA also fulfilled its duty to assist the veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained all medical records identified by the veteran and his representative. The Board's October 2003 remand instructed VA to obtain any records from the Social Security Administration (SSA) pertaining to the veteran. Following that request, in correspondence dated in October 2005, SSA indicated it was unable to locate any records concerning him. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In addition, pursuant to the Board's October 2003 remand, VA attempted to obtain the veteran's separation examination report or, if unavailable, his 201 file. In May 2004, the National Personnel Records Center (NPRC) indicated that his separation examination report was unavailable. He also, as mentioned, has indicated that he has no additional records to submit in support of his claim. Thus, no further effort is required to obtain his separation examination report. See Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). VA, however, was able to obtain his service personnel records. Lastly, as also already mentioned, in November 2007 the Board requested an expert medical opinion through the VHA to determine whether the veteran had discernable residuals of a head injury that he admittedly sustained prior to service, including headaches, and, if so, whether his pre-existing disability was chronically aggravated (meaning permanently worsened) by his military service beyond the natural progression of this condition - and, in particular, by his physical training. The designated VA neurologist addressed these questions in a January 2008 report. And, as mentioned, the veteran has been given the opportunity to review this VHA opinion and submit additional evidence and/or argument in response to it. So no further development or assistance is required before readjudicating his claim, keeping in mind the Court's reason for vacating the Board's prior decision was for not obtaining a medical nexus opinion. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). II. Merits of the Claim Service connection is granted for disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; see also VAOPGCPREC 3-2003. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In VAOGCPREC 3-2003, VA's General Counsel held that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and where clear and unmistakable evidence shows that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. 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 C.F.R. § 3.306(a); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345-47 (Fed. Cir. 2002). In each case, the Board is required to provide an adequate statement of its reasons and bases for any conclusion that the presumption of soundness is rebutted by clear and unmistakable evidence. See Crowe v. Brown, 7 Vet. App. 238, 244 (1994). In rebutting the presumption of soundness, the Board must produce medical evidence in support of its conclusion. See Paulson v. Brown, 7 Vet. App. 466, 471 (1995). Temporary or intermittent flare-ups of a pre- existing disorder are not sufficient to constitute aggravation. Rather, the underlying condition must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As already acknowledged, the report of the veteran's military separation examination is unavailable for consideration. And as also already alluded to, when at least a portion of the service medical records are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision ...." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Although in this situation, when records are missing, there is a heightened obligation to more fully explain the reasons and bases for a decision, this does not obviate the need to have medical nexus evidence supporting the claim. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, there is no reverse presumption for granting the claim. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The veteran readily acknowledges that he sustained a head injury prior to entering the military. But he contends that any residual headaches he may have experienced following that incident resolved prior to his military enlistment and, in any event, that any pre-existing headaches were aggravated during his training at Fort Hood, Texas. See his hearing transcript at page 12. He maintains that he was discharged from service because of his headaches. See his statement in support of claim, VA Form 21-4138, dated in June 1997. For the reasons set forth below, however, the Board finds that the preponderance of the evidence is against his claim, so it must be denied. The presumption of soundness applies in this case, as the report of the veteran's October 1976 military enlistment examination makes no reference to prior head trauma or any resulting headaches. He checked the box for "No" when asked about experiencing "Frequent severe headache." Also significant is the fact that a clinical evaluation of his head, face, and neck was normal. See 38 C.F.R. § 3.304(b). So to overcome this presumption of soundness, there must be both clear and unmistakable evidence that the veteran sustained a head injury prior to service and clear and unmistakable evidence that any residuals thereof, i.e., headaches, were not aggravated by his military service. As to the occurrence of a head injury prior to service, the medical evidence clearly and unmistakably shows the veteran sustained a compound depressed skull fracture in October 1974, some two years before beginning active duty. He had surgery for elevation of the fracture with removable of foreign material, including hair and bone fragments. In February 1975, also prior to service, he had additional surgery for a crainioplasty. Thus, clear and unmistakable evidence shows he sustained a head injury prior to service, which, again, he does not dispute. Since clear and unmistakable evidence shows the veteran sustained a head injury prior to service, the remaining question is whether there also is clear and unmistakable evidence indicating any residuals of this pre-existing head injury (including, in particular, headaches) were not aggravated by his military service beyond their natural progression. There is clear and unmistakable evidence on this point, too. The veteran's service medical records are entirely unremarkable for any subjective complaints of headaches. And although he has steadfastly maintained that he was separated from military service because of his headaches, his service personnel records show he was discharged because of an inability to adapt socially or emotionally to military life and because of his failure to meet the minimum standards prescribed for successful completion of training due to a lack of aptitude and apathy. Thus, his service medical and personnel records provide compelling evidence against his claim that his pre-existing head injury was somehow aggravated by his service. Evidence developed after service also provides compelling evidence against the veteran's claim that his pre-existing head injury was somehow aggravated by his service. The first post-service indication of any subjective complaints of headaches was in 1982, approximately five years after his discharge from service. See the report of an August 1982 outpatient consultation with M.P., M.D., a private neurologist. Such a lengthy lapse between service and the first complaints of headaches after service provides highly probative evidence against a finding that the veteran's pre- existing head injury was aggravated by his military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There are two medical opinions supporting the veteran's claim. Unfortunately, however, these opinions are of limited probative because they are completely inconsistent with the evidence of record and do not appear to be based on an independent review of the claims file. In a May 2000 letter, N.F., M.D., indicated that he had been treating the veteran for the past one-and-a-half years, spending most of the time dealing with one problem: episodic lanciating pain located in his right temple. Dr. N.F. said the headaches are brief, lasting under five minutes, but quite severe (noting the veteran rated them as 8-9 on a scale of 10). Dr. N.F. then recorded the veteran's history of head trauma to his right temple in October 1975, his enlistment into the Army in October 1976, and that he began experiencing these headaches while undergoing the rigors of Basic Training, stating as well that it was because of them that he received an Honorable Discharge in March of 1977. Dr. N.F. mentioned the veteran has since been to see multiple neurologists, as well as other specialists for this problem, and has tried multiple therapies including Dilantin, Elavil, Darvocet, Inderal, and Vicodin, among other medications, also indicating he was then currently being maintained, with moderate success, on Lorcet. Dr. N.F. further indicated that secondary to the headaches the veteran has suffered from depression, insomnia, anxiety, sexual dysfunction, as well as a general decrease in his ability to enjoy life. Dr. N.F. then opined that, since the veteran first experienced the headaches while undergoing Basic Training, it seems as likely as not that the physical demands placed upon him precipitated or at least promoted the problem. The deficiency in this opinion is that Dr. N.F. merely accepted the veteran's history of headaches dating back to service without independently reviewing the file to make an objective determination of whether this was indeed the case. This is apparent from the fact that headaches are not mentioned in any of the veteran's service medical records, or even for the first five years after his service ended, and, despite his contentions to the contrary, was not the reason for his military discharge. So in light of these inconsistencies, the Board is not required to accept this medical history as reported by the veteran, significantly lessening the probative value of Dr. N.F.'s opinion because it was predicated largely, if not entirely, on incorrect assumptions. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept a medical opinion that is based on a reported history and unsupported by clinical findings; Leshore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that evidence which is simply information recorded by a medical examiner, unenhanced by any additional comment by that examiner, does not constitute competent medical evidence); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). The Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. And this is indeed the situation here because, as mentioned, Dr. N.F. made certain assumptions based on the history the veteran had provided, which are not otherwise corroborated by the record. For these same reasons, the Board also rejects the opinion in the report of a May 2003 VA examination, which was prepared by a VA nurse practitioner. During the interview, the veteran reported his history of head trauma prior to service, with no sequelae (i.e., residuals) such as headaches until he enlisted in the Army. And this VA nurse practitioner concluded the veteran had developed headaches in his late teens, which was typical for the onset he had in service - noting that migraines, heat-related and common headaches would have been aggravated by the strenuous training of being a solider. This nurse practitioner added that, although there were military records missing from the veteran's file, she believed he had a history of fighting as a teen. But she also found his story of being medically discharged from service due to headaches just as plausible based on the fact that he did not report the head injury during his enlistment examination. Again, the problem with this opinion is that it is based on an inaccurate factual background and unsupported by the evidence of record. Although the nurse practitioner indicated in her report that she had reviewed the veteran's claims file, nowhere does she account for the fact that his service medical records make no reference whatsoever to headaches, or that he was not medically discharged from service because of headaches - though he now claims he was, or that he first reported headaches many years after service. Consequently, these factual inaccuracies significantly limit the probative value of this opinion. See Godfrey, Leshore, Swann, Reonal, Kowalski, Coburn, all supra; see also Hernandez-Toyens v. West, 11 Vet. App, 379, 382 (1998). In contrast, the VA neurologist that submitted a specialist's opinion in January 2008 did review the veteran's entire claims file and based his opinion on sound rationale. His opinion had the proper factual foundation. This neurologist first challenged the veteran's assertion that he was medically discharged from service because of headaches. This neurologist, instead, commented that information in the claims file suggests the veteran's commander initiated action to discharge him for failure to adapt socially and emotionally, as well as failure to meet standards for successful training. This neurologist, while acknowledging the veteran's separation physical was not available for consideration, nevertheless then added that none of the available service medical records refers to headaches during service. This neurologist also found it interesting that the veteran did not report headaches until 1982, at which time he returned to his neurosurgeon and reported ongoing headaches "for the last year" - which, if true, means only dating back to the year prior, 1981, so still several years after his military service had ended in 1977. This VHA neurologist thus determined: (1) There is no discernable residual, including headaches, of the head injury sustained prior to service. It is not plausible that discharge from the military for headaches would occur if there is no mention of headaches in the military record. (2) There is no evidence that military service, including physical activity, would permanently worsen a preexisting head injury or lead to chronic headaches. In providing his opinion, this neurologist expressed disagreement with the opinions provided by Dr. N.F. and the VA nurse practitioner, commenting that, unfortunately, there is no evidence the veteran's headaches began during his service or were the cause of his dismissal. The Board places greater probative value on this medical expert opinion from the VHA neurologist, as his opinion is based on an independent review of the veteran's claims file, is consistent with the evidence of record, and is supported by sound rationale, unlike the opinions of Dr. N.F. and the VA nurse practitioner to the contrary. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). For these reasons and bases, the Board finds that clear and unmistakable evidence shows the veteran injured his head prior to service, and that any residuals from that injury, including headaches, were not aggravated by his military service beyond their natural progression. In reaching this decision, the Board is persuaded by his service medical records, none of which refers to headaches, and the January 2008 opinion provided by the VHA neurologist, concluding there is no evidence that the veteran's pre-existing head injury was aggravated by his service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position). In addition to the medical evidence, the Board also has considered the veteran's personal lay statements in support of his claim, including testimony presented at his Board hearing. He and his wife are competent to testify as to the severity as well as the date of onset of his headaches, as this type of disability is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). But in light of the fact that he claims he was discharged from service because of headaches when, in fact, the record clearly establishes that he was discharged for other reasons, namely, because of an inability to adapt socially or emotionally to military life, the Board does not find his statements concerning headaches in service or during the immediately ensuing years to be credible. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board); Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). See also 38 C.F.R. § 3.159(a)(2) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Board thus concludes that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for residuals of a head injury, including headaches. In reaching this decision, the Board has carefully considered the doctrine of reasonable doubt. But as the preponderance of the evidence is clearly against his claim, this doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. ORDER Service connection for residuals of a head injury, including headaches, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs