Citation Nr: 1008545 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-26 232 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for status post Caesarian section abdominal scar. 3. Entitlement to service connection for a right wrist disability. 4. Entitlement to an initial compensable evaluation for migraine headaches. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from October 1997 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the RO which, in part, granted service connection for migraine headaches; rated noncompensably disabling, and denied service connection for tinnitus, an abdominal scar, and a right wrist disability. In a statement received in August 2008, the Veteran expressed dissatisfaction with the January 2008 rating decision concerning the initial evaluations assigned for alopecia areata, left hallux valgus with bunion, and right hallux valgus. A statement of the case was promulgated in September 2008. However, the Veteran did not submit a substantive appeal and therefore, the issues are not in appellate status and can not be addressed in this decision. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The Veteran is not shown to have tinnitus at present which is related to service. 3. The Veteran's right wrist tendonitis and abdominal scar are at least as likely as not related to service. 4. Since service connection was established, the Veteran's migraine headaches are manifested by occasional prostrating attacks which are not prolonged or productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The Veteran does not have tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. An abdominal Caesarian section scar was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 3. Tendonitis of the right wrist was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 4. The criteria for an initial increased evaluation to 30 percent, and no higher, for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2009). Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120- 21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims, a letter dated in July 2008, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records and all available private medical records have been obtained and associated with the claims file. The Veteran also was examined for VA purposes. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Tinnitus The Veteran contends that service connection should be established for tinnitus based on service incurrence. When examined by VA in December 2007, the Veteran reported a history of tinnitus since around 1998, manifested by ringing in her ears for about 30 seconds, precipitated by a feeling of pressure in the right ear. She reported a history of noise exposure to various mechanical devices in service, mostly with hearing protection, and said that she was also involved in fire fights with M16 and 9-mm weapons during service. The service treatment records, including several audiological and periodic examinations showed no complaints, treatment, abnormalities, or diagnosis referable to any hearing problems, tinnitus, or head injury in service. The Veteran's service separation examination in February 2007, was negative for any complaints, abnormalities, or diagnosis referable to any hearing problems or tinnitus. The first reported complaint of tinnitus was with the filing of this claim in May 2007. When examined by VA in December 2007, the Veteran reported recurrent episodes of pressure in the right ear followed by a whistling sound in both ears since about 1998, and rated her symptoms as a two or three on a scale of 1 to 10. On VA audiological examination, the Veteran's hearing acuity was within normal limits and speech discrimination was excellent, bilaterally. External and middle ear function, external auditory canals, and the tympanic membranes were normal, bilaterally. Immittance testing revealed Type A tympanograms, bilaterally, with present ipsilateral middle ear muscle reflexes on the right side and absent with all other stimulations modes. The diagnosis was tinnitus matched at 6000 hertz. The audiologist indicated that there was no evidence of a hearing loss at present and opined that in the absence of a hearing impairment, it was less likely than not that the Veteran's tinnitus was related to acoustic trauma in service. The audiologist indicated that there were many factors that can cause tinnitus, but that a specific etiology could not be determined. Regarding the Veteran's contentions, the Board notes that she is competent to attest to factual matters of which she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, etc. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); 38 C.F.R. § 3.159(a)(2). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Barr v. Nicholson, 21 Vet. App. at 310; see also Layno, supra (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")). While the Veteran is competent to report symptoms that she has experienced, the Board finds that her assertions of a nearly eight year history of tinnitus when examined by VA in 2007, is inconsistent with the medical evidence of record and her prior assertions, and raises serious questions as to her ability to provide accurate and reliable information. The subjective nature of tinnitus and the fact that it cannot be measured by diagnostic or scientific means makes it essentially impossible to verify, and is generally diagnosed by way of a self-described history. Tinnitus is often associated with hearing loss, ear disease, or a head injury or trauma, none of which are present in this case. In this case, the Veteran never mentioned any ear problems or tinnitus during her nearly 10 years of active service. In fact, on a Report of Medical History for separation from service in January 2007, she specifically denied any ear or hearing problems and no pertinent abnormalities were noted on examination. In a subsequent Medical Assessment in February 2007, the Veteran stated that she did not suffer from any injury or illness in service for which she did not seek medical attention. The Veteran does not have a hearing loss at present, and has no history of a head injury, ear infection, or other ear problems in service. While the Veteran reported a history of noise exposure from "fire fights" when examined by VA in December 2007, she specifically denied that she discharged her weapon during combat or that she was exposed to loud noises while serving in Iraq, on a Post Deployment Health Assessment in May 2004. That the Veteran would suffer from tinnitus for most of her nearly ten years of active service, but never seek medical attention or even mention her alleged chronic tinnitus is simply not believable. In this case, the Board finds the VA medical opinion persuasive as it was based on a longitudinal review of the entire record and included a discussion of all relevant facts. The audiologist offered a rational and plausible explanation for concluding that the Veteran's current tinnitus was not related to acoustic trauma in service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) Moreover the Veteran has presented no competent medical evidence to dispute the opinion. Thus, the most probative evidence of record consists of the December 2007 VA audiologist's opinion. Based on the evidence discussed above, the Board finds that the Veteran's assertions regarding her alleged chronic tinnitus in service is not supported by any credible evidence and is of limited probative value. Buchanan v. Nicholson, supra; Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints); see also Forshey v. Principi, 284 F. 3d 1335 (Fed. Cir. 2002) ("negative evidence" could be considered in weighing the evidence). While the Veteran may believe that she has tinnitus at present which is related to service, she has not presented any competent medical evidence to support that assertion. Direct service connection requires a finding that there is a current disability that has a relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Inasmuch as there is no evidence of any ear problems, hearing loss, or head trauma in service, and no credible or competent evidence that any current tinnitus is related to service, the Board finds no basis for a favorable disposition of the Veteran's claim. Accordingly, the appeal is denied. Abdominal Scar & Right Wrist Disability The service treatment records showed that the Veteran was treated for bilateral wrist problems on several occasion during service. Although initial reports showed treatment only for left wrist pain, treatment records beginning in February 2007, showed involvement of both wrists. A report from the Charleston Naval Health Clinic in April 2007, included a diagnosis of de Quervain tenosynovitis of the right wrist. The service records also showed that the Veteran underwent a Caesarian section (C-section) during child birth in October 2005, without complication. When examined by VA in December 2007, there was a 15- by 1- mm, light and dark, flat, C-section scar in the lower abdominal area which was tender to palpation. There were no ulceration or adhesions, and no functional impairment associated with the scar. There was pain and mild limitation of motion of the right wrist, but no weakness or tenderness. The diagnoses included residual tender lower abdominal C- section scar and bilateral wrist tendonitis. The evidence required to warrant a grant of disability benefits does not have to be conclusive. The question is whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order to establish service connection the claimed disability, 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). In the instant case, the evidence showed that the Veteran delivered a child by Caesarian section, and was treated for and diagnosed with tendonitis of the right wrist during service. The record also showed that the C-section scar was tender to palpation, and that she had tendonitis in the right wrist when examined by VA shortly after service. Although the VA examiner did not offer any opinion concerning the etiology of the Veteran's disabilities, it is readily apparent that the disabilities were first manifested in service. In view of the Veteran's service history and the positive findings on VA examination, it is concluded that service connection for status post, C-section abdominal scar and tendonitis of the right wrist is warranted. Increased Ratings - In General Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2009). Separate [staged] ratings may be assigned for separate periods of time based on the facts found. Migraine Headaches By rating action in January 2008, the RO granted service connection for migraine headaches and assigned a noncompensable evaluation; effective from July 13, 2007, the day following discharge from service, based on evidence of treatment for recurring headaches in service and a diagnosis of migraine headaches on VA examination subsequent to service. When examined by VA in December 2007, the Veteran reported intermittent headaches about once a week, lasting for about an hour, and rated them as a three on a scale of 1 to 10. She reported that the headaches were not prostrating and did not interfere with her normal daily activities. She also reported flare-ups about once a week, lasting about three hours, and said that she had good relief with over-the- counter medication. The Veteran reported that she had occasional vomiting with the worst headaches and sometimes had to go into a dark room and lie down. The Veteran reported that she stayed at home to take care of her infant child, and that she had not worked since her discharge from service. The Veteran is currently assigned a noncompensable evaluation for her headache disorder under DC 8100 for migraine headaches, which provides for a 50 percent rating with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; 30 percent with characteristic prostrating attacks occurring on average of once a month over the last several months; 10 percent with characteristic prostrating attacks averaging one in two months over the last several months, and a noncompensable evaluation with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009). In this case, the Board finds that the Veteran's reported migraine headaches more closely approximate the criteria for a 30 percent evaluation and no higher, since her discharge from service. 38 C.F.R. §§ 4.7, 4.21. Although the Veteran reported intermittent headaches about once a week, she described them as generally non-prostrating type headaches and said that they did not interfere with her routine daily activities. While the Veteran reported flare-ups about once a week, she said that they lasted for only about three hours and that she had good relief with over-the-counter medication. The Veteran does not claim, nor does the evidence of record show completely prostrating headaches or prolonged attacks productive of what could be characterized as severe economic inadaptability that would warrant a rating in excess of 30 percent under the regulatory criteria. The Veteran stays at home to care for her child and has not been otherwise employed since her discharge from service. Based on the Veteran's description, the Board finds that her migraine headaches more nearly approximate the criteria for a 30 percent evaluation and no higher. Finally, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule and the assigned schedule ratings are, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). Further, in this case, the record does not reflect frequent periods of hospitalization because of the service-connected headaches, nor interference with employment to a degree greater than that contemplated by the regular schedular standards. The Veteran does not claim, nor does evidence of record show any periods of hospitalization for her migraine headaches. Further, the Veteran has not submitted any credible evidence showing that her migraine headaches have markedly interfered with her employment status. Thus, the evidence of records does not reflect any factor which takes the Veteran outside of the norm, or which presents an exceptional case where her currently assigned disability rating is found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Thun v. Peake, 22 Vet. App. 111 (2008). See also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board also has considered whether the Veteran was entitled to staged ratings for her migraine headaches. However, upon review of all the evidence of record, the Board finds that at no time since service connection was established, has the Veteran's headaches been more or less disabling than is reflected in the 30 percent evaluation assigned. (CONTINUED ON NEXT PAGE) ORDER Service connection for tinnitus is denied. Service connection for a residual scar, status-post Caesarian section is granted. Service connection for tendonitis of the right wrist is granted. An initial evaluation to 30 percent for migraine headaches is granted, subject to VA laws and regulations concerning the payment of monetary benefits. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs