Citation Nr: 1032597 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 07-19 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a brainstem disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Dana W. Duncan, Attorney at Law ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to March 1993. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In a November 2008 decision, the Board denied the claims on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on an undated Joint Motion for Remand (Joint Motion), the Court remanded this appeal in March 2010 for development in compliance with the Joint Motion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). VACATUR VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2009). Here, the Court remanded the Board's decision with respect to the brainstem, cervical spine, and headache disorder issues, based on the finding that the Board's November 2008 decision misapplied the provisions of 38 U.S.C.A. § 1111 (West 2002) and failed to provide adequate reasons and bases for why a further VA medical examination was not warranted for the Veteran's headache disorder. Therefore, the decision of November 13, 2008 failed to provide the Veteran due process under the law. Accordingly, in order to prevent prejudice to the Veteran, the parts of the November 13, 2008 decision of the Board that denied service connection for a brainstem disorder, a cervical spine disorder, and a headache disorder must be vacated, and a new decision will be entered as if those parts of the November 13, 2008 decision by the Board had never been issued. FINDINGS OF FACT 1. The Veteran's currently diagnosed brainstem disorder clearly and unmistakably pre-existed military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service. 2. The Veteran's currently diagnosed cervical spine disorder clearly and unmistakably pre-existed military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service. 3. The preponderance of the evidence of record does not relate the Veteran's currently diagnosed headache disorder to military service or to a service-connected disability. CONCLUSIONS OF LAW 1. A brainstem disorder was not incurred in, or aggravated by, active military service, nor can it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). 2. A cervical spine disorder was not incurred in, or aggravated by, active military service, nor can it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). 3. A headache disorder was not incurred in, or aggravated by, active military service, or proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Prior to initial adjudication, letters dated in May 2006 and July 2006 satisfied the duty to notify provisions. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. A VA examination sufficient for adjudication purposes was provided to the Veteran in connection with his headache disorder claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this examination did not comment on whether the Veteran's headache disorder was related to his cervical spine and brainstem disorders, such an opinion is irrelevant to the adjudication of the claim as service connection is not in effect for a cervical spine disorder or a brainstem disorder and the Board is again denying service connection for those disorders herein. In these circumstances, a remand to obtain such an etiological opinion would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA examinations have not been accorded the Veteran in connection with his other claims. The Veteran has repeatedly requested the he be provided with VA examinations for these other claims and has stated that the RO improperly failed to schedule these examinations. In this regard, the Board emphasizes that the VA regulations are clear on this matter. VA is required to provide a medical examination or obtain a medical opinion if VA determines it is necessary to decide the claim. A medical examination or a medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or current symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2009) In this case the evidence of record includes current medical diagnoses of brainstem and cervical spine disorders. However, the evidence of record does not establish that the Veteran experienced an event, injury, or disease in service which relates to either of these claimed disabilities. Furthermore, as will be discussed below, the evidence of record does not indicate that either the brainstem disorder or the cervical spine disorder is associated with military service. As such, under VA law, medical examinations or medical opinions are not considered necessary to decide the Veteran's claims for service connection for a brainstem disorder and a cervical spine disorder. Accordingly, the RO properly declined to provide the Veteran with further medical examinations. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although Veterans Claims Assistance Act notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). Generally, service connection may be granted for a 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(a). 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). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). When determining whether a disability or disease was incurred in service, or preexisted service, a veteran shall be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service and by clear and unmistakable that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and was clearly and unmistakably not aggravated by service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 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 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Accordingly, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). Brainstem and Cervical Spine Disorders The Veteran's service treatment records show that on a February 1989 induction report of medical history, the Veteran indicted that he had previously experienced a head injury. The examiner noted that the Veteran reported hitting his head on a crib with no loss of consciousness. The Veteran's service treatment records are negative for any complaints or diagnoses of a brainstem or cervical spine disorder. After separation from military service, a November 2002 private medical report stated that the Veteran was being referred for "new onset" headaches. A December 2002 private medical report stated that the Veteran experienced positional vertigo symptoms in July 2002 and November 2002, with chronic headaches for "months." A November 2003 VA radiographic report stated that on views of the Veteran's lateral cervical spine, there appeared to be a "fusion of the facets at C1-2 with a small cleft seen anteriorly at the junction of the odontoid with the body of C2 that is presumably developmental in nature and represents normal variation." The impression was apparent fusion of the posterior elements at C1-2 with possible congenital deformity or post-traumatic deformity between the odontoid and body of C2 that should be correlated with clinical history. A November 2003 VA neurosurgery report dated the next day stated that there was "kinking" of the Veteran's brainstem and that the Veteran's cervical spine disorder was congenital. The medical evidence of record shows that the Veteran's cervical spine and brainstem disorders have been consistently diagnosed since November 2003 and that they have consistently been described as congenital in nature. An October 2007 letter from a VA medical examiner stated that the Veteran suffers from congenital abnormalities of the cervical spine and compression of the brain stem, including all of the residual effects from this abnormality. It is the opinion of this provider that while [the Veteran] was in the Navy he was seen by Air Force doctors and was improperly diagnosed for the above stated condition. The headaches that were improperly diagnosed per the Air Force is caused by or a result of the missed congenital abnormality of the cervical spine and the compression of the brain stem, including all the residual effect the [veteran] has suffered from this improperly diagnosed condition. The Veteran claims that his cervical spine and brainstem disorders pre-existed military service and were aggravated by military service. In this regard, the Board notes that the congenital nature of the Veteran's disorders is clear and unmistakable evidence which demonstrates that the disorders existed before acceptance and enrollment into service. As such, despite the absence of any cervical spine or brainstem disorders on the Veteran's service entrance examination report, the presumption of soundness is rebutted by clear and unmistakable evidence. See Wagner, 370 F.3d at 1093. While the October 2007 letter from a VA medical examiner stated that the Veteran's disorders were "improperly diagnosed" during military service, this statement does not provide any evidence whatsoever that the disorders increased in severity during military service. There is no medical evidence of record which states in any manner that the Veteran's cervical spine or brainstem disorders increased in severity in any manner during military service. Indeed, the Veteran's service treatment records do not include a single medical record of treatment for a cervical spine disorder or a brainstem disorder. The mere existence of a pre-existing disability during military service, and even the failure of the military to properly diagnosis such a disability, does not provide any evidence that the disability itself underwent an increase in severity during military service. 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 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). In this case, there is no inservice evidence of any complaints or symptoms of a cervical spine or brain stem disorder, there is no post-service medical evidence of any complaints or symptoms until 2002, and there is no medical evidence which states that either of these disabilities underwent an increase in the underlying severity during military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that aggravation in service may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The October 2007 letter from a VA medical examiner stated that the Veteran's headaches were a symptom of his cervical spine and brainstem disorders. However, even if the Veteran's in-service headache complaints were a manifestation of his cervical spine and brainstem disorders, the medical evidence shows that they occurred only once during military service for a period of approximately 4 days. The Veteran did not report a recurrence of the headaches and he specifically reported on his February 1993 separation examination report of medical history that that he did not have and had never had frequent or severe headaches. Thus, the medical evidence of record shows that even if the Veteran's in-service headaches were a symptom of his cervical spine and brainstem disorders, they were a temporary or intermittent flare-up, not a permanent advancement of the underlying pathology. See Jensen, 4 Vet. App. at 306-07; Hunt, 1 Vet. App. 292; Verdon, 8 Vet. App. at 536-7. In summary, the medical evidence of record shows that the Veteran did not report, and was not treated for, any symptoms which would correspond to a permanent increase in the underlying severity of the Veteran's brainstem and cervical spine disorder. See Id. After military service, the Veteran did not report any complaints of a brainstem or cervical spine disorder for approximately 9 years. See Maxson, 230 F.3d at 1333. When the Veteran did report complaints, he stated that they had begun recently, not a decade before. Finally, there is no competent evidence of record that the Veteran's pre-existing brainstem and pre-existing cervical spine disorders clearly and unmistakably underwent an increase in severity during military service. As such, the medical evidence of record clearly and unmistakably shows that the Veteran's preexisting brainstem and cervical spine disorders did not undergo a permanent increase in the underlying severity during military service. See Wagner, 370 F.3d at 1093. The Veteran's statements alone are not sufficient to prove that his brainstem and cervical spine disorders were incurred in or aggravated by military service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the Veteran is not competent to make a determination that his brainstem and cervical spine disorders were incurred in or aggravated by military service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, there is no competent evidence of record that shows that the Veteran's brainstem and cervical spine disorders were incurred in, or underwent a permanent increase in the underlying severity during, military service. As such, service connection for a brainstem disorder and a cervical spine disorder is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is clear and unmistakable evidence of record that shows that the Veteran's cervical spine and brainstem disorders pre-existed military incurred and clear and unmistakable evidence that they did not increase in severity during military service, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Headache Disorder The Veteran's service treatment records show that in October 1992, the Veteran complained of headaches for the previous 3 to 4 days. He stated that they were localized over the left temporal area and waxed and waned. The Veteran reported that he performed data processing at a computer and had been working 9 hours a day for 11 days straight. He reported that he felt better when he went to bed and could fall asleep immediately. On observation, no headache was present. The assessment was muscle contraction. On the Veteran's February 1993 separation report of medical history, he indicated that he did not have and had never had frequent or severe headaches. After separation from military service, a November 2002 private medical report stated that the Veteran was being referred for "new onset" headaches. A December 2002 private computed tomography and magnetic resonance imaging report stated that the Veteran complained of progressively worsening severe headaches. A subsequent December 2002 letter from a private physician stated that the Veteran complained of "chronic headaches intermittently for months." After physical examination, the impression was headaches. The private physician stated that "I do not know what the cause is, although they may just be migraines." The medical evidence of record shows that a headache disorder has been consistently diagnosed since December 2002. In a February 2004 private disability determination report, the Veteran reported that his "problems started in November of 2002. He feels that around November 25, 2002, he developed a pulling sensation in his head and this is what he says, and also associated with that were problems with his balance, coordination and headaches." After physical examination, the diagnosis was complaints of headaches, for which the "etiology . . . has never been determined." In a February 2005 VA neurosurgery outpatient report, the Veteran reported that he developed headaches in 2002. A December 2006 VA neurological disorders examination report stated that the Veteran's claims file had been reviewed. The Veteran reported that he began having headaches while in active military service. After physical examination, the diagnosis was headaches. The examiner stated that "[i]t is impossible to resolve the issue as to whether or not this is related to any conditions in the military service without res[or]ting to mere speculation." An October 2007 letter from a VA medical examiner stated that the Veteran suffers from congenital abnormalities of the cervical spine and compression of the brain stem, including all of the residual effects from this abnormality. It is the opinion of this provider that while [the Veteran] was in the Navy he was seen by Air Force doctors and was improperly diagnosed for the above stated condition. The headaches that were improperly diagnosed per the Air Force is caused by or a result of the missed congenital abnormality of the cervical spine and the compression of the brain stem, including all the residual effect the [veteran] has suffered from this improperly diagnosed condition. The medical evidence of record does not show that the Veteran's currently diagnosed headache disorder was incurred in or aggravated by military service. While the Veteran had an in-service complaint of headaches, this occurred only once and the Veteran reported on his separation report of medical history that he did not and had never experienced frequent or severe headaches. While the Veteran also has a current diagnosis of a headache disorder, there is no medical evidence of record that this was diagnosed prior to November 2002, approximately 9 years after separation from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Furthermore, the Veteran himself reported in multiple medical reports that his current headache disorder began in 2002, thus showing that there was no continuity between his in-service complaint and his current diagnosis. In addition, there is no medical evidence of record that relates the Veteran's headache disorder to military service or to a service-connected disability. The December 2002 letter from a private physician, February 2004 private disability determination report, and the December 2006 VA neurological disorders examination report all stated that the etiology of the Veteran's headache disorder was unknown or could not be determined without resort to speculation. The only medical evidence of record which cited a specific cause of the Veteran's headache disorder is the October 2007 letter from a VA medical examiner. This letter specifically stated that the Veteran's headache disorder "is caused by or a result of the missed congenital abnormality of the cervical spine and the compression of the brain stem." However, as has been noted above, service connection is not warranted for the Veteran's cervical spine or brainstem disorders. As such, the October 2007 letter does not provide medical evidence which relates the Veteran's currently diagnosed headache disorder to military service or to a service-connected disability. The Veteran's statements alone are not sufficient to prove that his currently diagnosed headache disorder is related to military service. Espiritu, 2 Vet. App. at 495; Grottveit, 5 Vet. App. at 93. The Veteran is competent to report the occurrence of observable symptomatology, such as headaches. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability."). However, while the Veteran's recent statements include reports that his headaches began prior to military service, existed during military service, and continued after separation from military service, these statements are contradicted by the contemporary evidence of record. This includes the Veteran's February 1993 separation report of medical history, in which he indicated that he did not have and had never had frequent or severe headaches, and the numerous post-service medical reports in which he stated that his symptoms began in 2002. The Board assigns greater probative weight to the Veteran's statements in the contemporary medical evidence than to his current reported history. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). Accordingly, the preponderance of the evidence of record does not relate the Veteran's currently diagnosed headache disorder to military service or to a service-connected disability. As such, service connection for a headache disorder is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 54-56. ORDER The parts of the November 13, 2008 decision of the Board that denied service connection for a brainstem disorder, a cervical spine disorder, and a headache disorder is vacated. Service connection for a brainstem disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for a headache disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs