Citation Nr: 1000189 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 08-14 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease and disc herniation at L3-4, status-post lumbar microdiscectomy (hereinafter, "low back disorder"). 3. Entitlement to an initial compensable rating for degenerative joint disease of the right elbow (hereinafter, "right elbow disorder"). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. By this decision, the RO, in pertinent part, denied service connection for migraine headaches. The RO also established service connection for the low back disorder, evaluated as 10 percent disabling, and right elbow disorder, evaluated as noncompensable (zero percent disabling). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's low back and right elbow claims. Accordingly, these claims will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent medical and other evidence of record reflects the Veteran's migraine headaches were incurred during his active service. CONCLUSION OF LAW Service connection is warranted for the Veteran's migraine headaches. 38 U.S.C.A. §§ 1110, 1131, and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that service connection is warranted for the Veteran's migraine headaches. Therefore, any deficiency regarding the duties to assist and notify has been rendered moot. Consequently, no further discussion of the VCAA with respect to this claim is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Board finds that service connection is warranted for the Veteran's migraine headaches. As detailed below, the Veteran's service treatment records contain in- service findings consistent with this disability, he has reported continuity of symptomatology since service, he has been diagnosed with migraine headaches at the September 2006 VA examination, and the examination report indicates the disability is etiologically linked to the in-service findings. The Veteran's service treatment records reflect he was treated on multiple occasions for complaints of headaches. For example, he was treated in April 2001 for complaints of chronic headaches. The records indicate that it was believed these headaches were due to cervical spine disorder (for which service connection has been established). Subsequent records from July 2002 note complaints of headaches and sinus pressure. Records in August 2003 again show complaints of headaches, with a diagnosis of possible migraines. A September 2006 VA general medical examination includes a diagnosis of migraine headaches. In denying the Veteran's claim below, it was emphasized that the Veteran's service treatment records do not contain a confirmed diagnosis of migraine headaches. However, the law does not require a confirmed in-service diagnosis of the claimed disability in order for service connection to be established. The Board also reiterates that the Veteran's service treatment records confirm he was treated on multiple occasions during service for complaints of headaches, and migraine headaches was considered as a possible diagnosis on at least one occasion. It was also stated that the VA examination's diagnosis of migraine headaches was based upon the Veteran's reported history. However, the Board notes that migraine headaches, and the symptomatology thereof, are the type of condition subject to lay observation. The Board also wishes to reiterate the holding of Jandreau, supra, that lay evidence, such as that provided to the Veteran in this case, can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional, as is the case here with the September 2006 VA general medical examination. See also Davidson v. Shinseki, 2009-7075 (Fed. Cir. Sep. 14, 2009). Further, the Board is of the opinion that this caselaw is of particular significance in a case, such as this, where the Veteran indicated the presence of relevant symptomatology prior to his separation form active service, reported continuity of symptomatology, the pertinent disability was diagnosed within a year after his separation from service, and nothing in the record explicitly refutes the Veteran's account of his medical history regarding this disability. The Board acknowledges that evidence on file, including service treatment records, indicate that the Veteran's headaches may be associated with his service-connected cervical spine disorder. However, this appears to indicate service connection may be warranted on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence on file also indicates that headaches may be associated with the service-connected sinusitis. Granted, headaches are part of the rating criteria associated with this disability under 38 C.F.R. § 4.97, Diagnostic Code 6510. Nevertheless, the Board is also cognizant of the fact that migraine headaches has its own separate Diagnostic Code, specifically 38 C.F.R. § 4.124a, Diagnostic Code 8100. Moreover, the Board finds it significant that the September 2006 VA examiner diagnosed allergic rhinitis/sinusitis, and still concluded that the symptomatology of the Veteran's headaches warranted a separate diagnosis of migraine headaches. The Board further notes that in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court stated that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for migraine headaches. ORDER Entitlement to service connection for migraine headaches is granted. REMAND In this case, the Board finds that further development is required with respect to the Veteran's low back and right elbow claims in order to comply with the duty to assist. The Board acknowledges that the September 2006 VA examination included findings regarding the symptomatology of both the low back and right elbow. However, as part of his May 2008 Substantive Appeal, the Veteran detailed multiple reasons as to why the findings on this examination were inaccurate. More recently, the Veteran's accredited representative contended in a February 2009 statement that these disabilities should be reexamined. Accordingly, the case must be remanded for a new examination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that new examinations are necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his low back and right elbow disorders since September 2006. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an orthopedic examination to evaluate the severity of his service-connected disabilities of the low back and right elbow. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The claims folder should be made available to the examiner for review before the examination. 3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in December 2008, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has 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. 2009). ______________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs