Citation Nr: 1004576	
Decision Date: 01/29/10    Archive Date: 02/16/10

DOCKET NO.  08-05 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to service connection for migraine headaches.


ATTORNEY FOR THE BOARD

Gina E. Fenice, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1978 to August 
1981.

This case comes before the Board of Veterans' Appeals 
(Board) on appeal of an October 2007 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Lincoln, Nebraska.

When this case was previously before the Board in July 2009, 
it was decided in part and remanded in part.  It has since 
returned to the Board for further appellate action.
FINDING OF FACT

The competent medical evidence of record does not support a 
finding that the Veteran's current headache disability is 
related to service.  


CONCLUSION OF LAW

A migraine headache disability was not incurred in or 
aggravated by active naval service.  38 U.S.C.A. §§ 1110, 
1131 (West 2002); 38 C.F.R. §3.303 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall considerations

As was alluded to in the Introduction, the Board remanded 
the claim in July 2009.  In essence, the Board instructed 
the agency of original jurisdiction (AOJ) to afford the 
Veteran a VA examination to determine the etiology of any 
currently present migraine headache disability as well as to 
consider new evidence submitted by the Veteran since the 
February 2008 Statement of the Case.  The AOJ was then to 
readjudicate the claim.  

The record reflects that the Veteran was afforded a VA 
examination in August 2009 pertaining to his claimed 
migraine headache disability.  The Appeals Management Center 
(AMC) subsequently readjudicated the claim in the September 
2009 Supplemental Statement of the Case in consideration of 
these examination results as well as the recently submitted 
evidence.

Thus, all of the Board's remand instructions have now been 
complied with.  
See 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

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 
5103A (West 2002 & Supp. 2009), and the pertinent 
implementing regulation, codified at 38 C.F.R. § 3.159 
(2009), provides that VA will assist a claimant in obtaining 
evidence necessary to substantiate a claim but is not 
required to provide assistance to a claimant if there is no 
reasonable possibility that such assistance would aid in 
substantiating the claim.  The VCAA also 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 the Secretary 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.  
Although the regulation previously required VA to request 
that the claimant provide any evidence in the claimant's 
possession that pertains to the claim, the regulation has 
been amended to eliminate that requirement for claims 
pending before VA on or after May 30, 2008. 

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) requires that notice to a claimant 
pursuant to the VCAA be provided "at the time" that, or 
"immediately after," VA receives a complete or substantially 
complete application for VA-administered benefits.  
Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the case at hand, the record reflects that the 
originating agency provided the Veteran with the notice 
required under the VCAA, including Dingess-compliant notice, 
by letter mailed in June 2007.  

The Board also notes that the Veteran has been afforded 
appropriate a VA examination and service treatment records 
and pertinent VA and private medical records have been 
obtained.  The report of the VA examination reflects that 
the examiner considered the Veteran's past medical history, 
recorded his current complaints, conducted an appropriate 
physical examination and rendered appropriate diagnoses and 
opinions consistent with the remainder of the evidence of 
record.  The Board therefore concludes that the examination 
is adequate for rating purposes.  See 38 C.F.R. § 4.2 
(2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 
(2007).  

The Veteran has not identified any outstanding evidence, to 
include medical records, that could be obtained to 
substantiate the claim.  The Board is also unaware of any 
such outstanding evidence. 

In sum, the Board is satisfied that any procedural errors in 
the originating agency's development and consideration of 
the claim were insignificant and non prejudicial to the 
Veteran.  Accordingly, the Board will address the merits of 
the claim.

Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  Service connection may be granted for any disease 
initially diagnosed after service, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed 
disorder, 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).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination 
of a matter, the Secretary shall give the benefit of the 
doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R.            
§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 
(1990).  To deny a claim on its merits, the evidence must 
preponderate against the claim.  Alemany v. Brown, 9 Vet. 
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran contends that he is entitled to service 
connection for a migraine headache disability, as he 
believes this condition originated during his active duty 
service.

The Veteran's service treatment records indicate that he 
complained of headaches on two occasions.  In November 1980, 
the Veteran complained of headaches along with other 
symptoms such as body aches and productive cough.  He was 
assessed with viral syndrome at that time.  Swelling around 
the eye lids and headaches were also noted in April 1981.  
However, there were no abnormalities with respect to any 
migraine or headache condition noted on the Veteran's August 
1981 discharge examination.

With respect to post-service medical records, records from 
the Saint Joseph Hospital from April 1993 indicate that the 
Veteran complained of a gradually worsening headache 
originating on the top of his head to the left temple area.  
Other symptoms noted included double vision and ataxia.  The 
examiner noted an impression of severe headache, possibly 
due to viral infection or bacterial causes, such as 
meningoencephalitis.  Electroencephalographic and CT scan 
testing results were both normal at that time.  Treating 
physicians concluded that the Veteran's condition was 
consistent with viral encephalitis.  These records then 
indicate that the Veteran was discharged a week after his 
headache resolved.

VA outpatient treatment records indicate that the Veteran 
reported that he was experiencing headaches, as well as 
other symptoms such as body aches, high fever and blurred 
vision, in June 2007.  Blurry vision and headaches were one 
again noted in private records dated in January 2008.  

The Veteran was afforded a VA examination in August 2009 to 
determine the etiology of any currently present migraine 
headache disability.  The examiner indicated that he 
reviewed the Veteran's claims file and noted the two 
occasions where the Veteran had headaches in service.  He 
pointed out that the accompanying treatment notes from these 
two notations suggest that the headaches were due to an 
infection and were not migraine in nature.  The Veteran told 
the examiner that his headache condition continuously 
worsened after service, and claimed that bright lights 
induced these headaches.  He indicated that he now 
experienced 1 to 2 frontal, non-prostrating headaches per 
week, lasting approximately 30 to 45 minutes each.  Then the 
examiner performed motor and sensory examinations, and the 
results of each were normal.

The examiner concluded by diagnosing the Veteran with muscle 
tension-type headaches, and noted a history of headaches 
associated with febrile infections.  He found that the 
Veteran did not suffer from migraine headaches, as his 
headaches are localized in the right frontal area and are 
not incapacitating.  With respect to the diagnosed tension-
type headaches, the examiner found that this headache 
condition was not related to service.  In so finding, he 
noted that the headaches in service were associated with 
febrile infections, and were completely different from the 
type of headaches the Veteran is currently experiencing.  

Based on the foregoing evidence, the Board has determined 
that the Veteran is not entitled to service connection for a 
headache disability.  While the Veteran has complained of an 
ongoing headache disability since service and there is 
medical evidence documenting the existence of a headache 
condition in 1993 and again since 2007, the only medical 
opinion of record discussing the etiology of this condition, 
the August 2009 VA examination, is against the Veteran's 
claim.  There is no competent medical opinion to the 
contrary.

The Board has considered the Veteran's assertions that his 
headaches are a result of military service.  However, 
although a lay person is competent to describe symptoms such 
as head pain, a layperson is generally not capable of 
opining on matters requiring medical knowledge, and the 
asserted relationship between his service and his headache 
complaints is not a matter to which the Veteran is qualified 
to render an opinion.  See Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992); see also Jandreau v. Nicholson, 492 
F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a 
veteran is competent to provide a diagnosis of a simple 
condition such as a broken leg, but not competent to provide 
evidence as to more complex medical questions).

The Board has also considered the Veteran's contentions of a 
continuity of symptomatology since service.  As noted, the 
Veteran is competent to describe symptoms, and his 
assertions of a continuity of symptomatology are of some 
probative value.  However, the Court has held that, even 
where a veteran asserted continuity of symptomatology since 
service, medical evidence was required to establish "a nexus 
between the continuous symptomatology and the current 
claimed condition . . . "  See, e.g., McManaway v. West, 13 
Vet. App. 60, 66 (1999), vacated on other grounds sub nom.  
McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. 
West, 13 Vet. App. 117 (1999).  In this instance, a VA 
examiner conducted a thorough physical evaluation and 
reviewed the medical evidence of record, and concluded that 
the Veteran's current headaches were unlikely to be related 
to service.  The Board finds that this opinion by a 
competent health provider to be more probative than the lay 
assertions of the Veteran regarding continuity of 
symptomatology.

The Board also notes that following his military service, 
the Veteran was neither treated nor diagnosed with any 
headaches until 1993, more than a decade after service.  A 
prolonged period without medical complaint can be 
considered, along with other factors concerning a claimant's 
health and medical treatment during and after military 
service, as evidence of whether an injury or a disease was 
incurred in service which resulted in any chronic or 
persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 
1333 (Fed. Cir. 2000).  The amount of time that passed 
between service and the first treatment or documented 
complaint of record of headache problems is evidence that 
weighs against the Veteran's claim.

In sum, for the reasons and bases expressed above the Board 
finds that the preponderance of the evidence is against the 
Veteran's claim of entitlement to service connection for 
migraine headaches.  In arriving at the decision to deny the 
claim, the Board has considered the applicability of the 
benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 
5107(b).  However, as there is not an approximate balance of 
evidence, that rule is not applicable in this case.  See 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. 
Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

ORDER

Entitlement to service connection for migraine headaches is 
denied.



____________________________________________
S. BUSH
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs