Citation Nr: 1038303	
Decision Date: 10/12/10    Archive Date: 10/22/10

DOCKET NO.  10-26 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Winston-Salem, North Carolina



THE ISSUE

Entitlement to service connection for claimed tension headaches.  



REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

A. Nigam, Associate Counsel




INTRODUCTION

The Veteran served on active duty from August 1951 to August 1953 
and from November 1990 to July 1991.  He also had service with 
the Army Reserve.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a February 2010 rating decision of the RO.  

Please note 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).  



FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable disposition 
of the issue addressed in this decision was obtained.  

2.  The Veteran has not presented credible lay assertions 
sufficient to establish a continuity of headache manifestations 
following a head injury in service.  

3.  The currently demonstrated tension headaches are not shown to 
be due to a documented event or incident of the Veteran's period 
of active service.  



CONCLUSION OF LAW

The Veteran does not have a disability manifested by tension 
headaches due to disease or injury that was incurred in or 
aggravated by active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000

VA's duties to notify and assist claimants in substantiating a 
claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) 
(concerning revisions to 38 C.F.R. § 3.159).  

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his or 
her representative, if any, of any information, and any medical 
evidence or lay evidence that is necessary to substantiate the 
claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must 
inform the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA will 
seek to provide; and (3) that the claimant is expected to 
provide.  

In this case, notice fulfilling the requirements of 38 C.F.R. § 
3.159(b) was furnished to the Veteran in December 2009, prior to 
the date of the issuance of the appealed rating decision.  In 
this letter, the Veteran was notified of VA's practices in 
assigning disability evaluations and effective dates for those 
evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006).  

The appeal was readjudicated in April 2010.  As this course of 
action has corrected any initial notice errors, there is no 
prejudice to the Veteran.  See Mayfield v. Nicholson, 499 F.3d 
1317 (Fed. Cir. 2007).  

VA has also fulfilled its duty to assist in obtaining the 
identified and available evidence needed to substantiate the 
claim adjudicated in this decision.  The RO has either obtained, 
or made sufficient efforts to obtain, records corresponding to 
all treatment described by the Veteran.  Additionally, the 
Veteran was afforded a VA examination that was fully adequate for 
the purpose of ascertaining the etiology question raised by the 
issue on appeal.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Hence, the Board is satisfied that all reasonable efforts to 
develop the record have been made with respect to the claim.  

As discussed, the Veteran was notified and aware of the evidence 
needed to substantiate his claim, the avenues through which he 
might obtain such evidence, and the allocation of 
responsibilities between himself and VA in obtaining such 
evidence.  The Veteran was an active participant in the claims 
process, identifying pertinent medical evidence and submitting 
evidence.  

Thus, the Veteran has been provided with a meaningful opportunity 
to participate in the claims process and has done so.  Any defect 
in the sequence of events or content of the notice is not shown 
to have any effect on the case or to cause injury to the Veteran.  

Therefore, any such defect is harmless and does not prohibit 
consideration of this matter on the merits.  See Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. 
Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  


Legal Criteria

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by service.  38 
U.S.C.A. § 1110 (West 2002).  

Service connection may be granted for any disease diagnosed after 
service when all the evidence establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (2009).  

To establish a service connection for an injury, a veteran is 
required to show (1) medical evidence of a current disability, 
(2) medical or lay evidence of in-service incurrence or 
aggravation of an injury, and (3) medical evidence of a nexus 
between the claimed in-service injury and the present disability.  
Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007).  

In cases where the veteran cannot establish some of these 
elements, a veteran can instead establish continuity of 
symptomatology.  38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. 
App. 303, 307 (2007).  

To establish continuity of symptomatology, the a veteran is 
required to show "(1) that a condition was 'noted' during 
service, (2) evidence of postservice continuity of the same 
symptomatology, and (3) medical or lay evidence of a nexus 
between the present disability and the postservice 
symptomatology."  Barr, 21 Vet. App. at 307.  

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.  

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.  

Although the Board has an obligation to provide adequate reasons 
and bases supporting this decision, there is no requirement that 
the evidence submitted by the Veteran or obtained on his behalf 
be discussed in detail.  

Rather, the Board's analysis below will focus specifically on 
what evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with respect 
to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. 
Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 
(2000).  

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; 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 asserts that his current headaches are related to his 
second period of active service.  Specifically, he reports 
developing headaches after being hit on the head with a tent pole 
in 1990 while serving in the Persian Gulf.  

The service treatment records show that, in March 1991, the 
Veteran was seen for complaint of bifrontal headaches, along with 
stuffy nose, nonproductive cough and fever, but only a diagnosis 
of an upper respiratory infection and hypertension was reported.  

Another service treatment record dated later in that month 
reflects complaints of mild headaches with some dizziness, and a 
diagnosis of dehydration secondary to poor intake was reported at 
that time.  

Thus, on this record, there is no showing that the Veteran had 
complaints or findings of any form of headache related to a head 
injury or as a manifestation of a chronic headache disorder.  

Moreover, after service, the Veteran's headache complaints were 
not reported until several years after his release from his 
period of service in the Persian Gulf.  This is strong evidence 
against a finding of any continuity of symptomatology.  See 
Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 
(Fed. Cir. 2000).  

In this regard, a September 1994 VA general medical examination 
and Persian Gulf War examination was negative for complaints or 
findings of a headache disorder.  

An October 1994 VA neuropsychiatric examination recorded a 
clinical history of some mild head injuries from auto accidents 
and a couple of fights with complaints of an occasional headache, 
but not much.  

A February 1995 VA CT scan of the head with contrast revealed no 
acute intracranial abnormality, to include hemorrhage, 
hydrocephalus, tumor, vascular lesion, acute infarction, or 
significant intracranial injury.  

During a May 1999 VA neuropsychological evaluation, the Veteran 
first reported that he was accidently hit with a tent pole that 
measured six inches in diameter while in the Persian Gulf without 
loss of consciousness and that the impact was to his right 
temporoparietal region.  

The Veteran indicated that he had not reported the incident as 
there was too much going on at his camp at the time.  
Significantly, at that time, the Veteran denied having a history 
of seizures or other head injuries.  

A January 2003 VA head CT scan without IV contrast revealed mild 
left maxillary sinus disease.  The brain demonstrated no evidence 
of infarction or significant atrophy that would exceed expected 
amounts for the Veteran's age.  

In conjunction with the current appeal, the Veteran underwent a 
VA neurology examination in February 2010.  Here, the examiner 
noted the date of onset for the headache disorder in 2004 or 
2005, based on the Veteran's statements that his headaches had 
begun approximately 4 or 5 years prior thereto.  

The examiner noted that, during the examination, the Veteran 
altered his account of when and how his claimed headache disorder 
began and indicated that his headaches started shortly after 
being hit in the head during service.    

At the time of the examination, the Veteran described 
experiencing headaches that sometimes started on one side of the 
forehead and felt like a "spider web" spreading across his 
forehead to include throbbing pain in the bifrontal forehead and 
to the center, back of the head.  He added that sometimes the 
headache was only in the back of the head.  

The Veteran complained of having headaches 3 to 4 times weekly, 
lasting from 15 to 45 minutes.  These were not prostrating, 
permitting ordinary activity.  He reported not carrying 
medication with him, but taking it when he got home with the 
usual relief of his symptoms.  

On examination, the VA examiner observed normal motor strength, 
muscle tone, and muscle bulk; normal sensory findings with all 
cranial nerves intact; normal reflexes; and normal cerebellar 
examination results.  The was no evidence of chorea or carotid 
bruit present.  

The examiner noted findings of an MRI of the head, without and 
with contrast, taken in February 2009, which showed mild 
microvascular disease and generalized cerebral atrophy, as well 
as left maxillary and frontal sinusitis.  

Further, an MR brain report showed that imaging revealed findings 
of the cortical sulci and ventricles being moderately prominent 
and suggesting a component of generalized cerebral atrophy, with 
no cerebral ischemia or focal cerebral lesion.  

There was no abnormal contrast enhancement.  No extracerebral 
mass or pathologic fluid collection was evident, and the skull 
base and calvarium appeared intact.  The left frontal and 
maxillary sinuses were opacified; the paranasal sinuses and 
mastoids otherwise appeared normally aerated.  Finally the 
examiner reported that the articular lens was missing, 
bilaterally.  

The Veteran was diagnosed with tension headaches.  The examiner 
opined that the Veteran's tension headaches were not caused by or 
a continuation of headaches reported in military service.  

The examiner added that the March 1991 service treatment record 
had indicated that the Veteran complained of multiple symptoms of 
bifrontal headaches, stuffy nose, nonproductive cough and fever, 
with no diagnosis of headaches documented on the problem list, 
and that the separation examination had no documented complaints 
of headaches and otherwise normal findings.  

The VA examiner concluded that a onetime visit with complaint of 
headaches in service did not establish a chronic condition, and 
most likely represented an acute self-limiting illness.  The 
examiner indicated that there was no documented continuity of 
care regarding tension headaches.  

On review of the entire record, the Board finds not competent 
medical evidence establishing a nexus between the current tension 
headaches and any event or incident of his service.  See Moray v. 
Brown, 5 Vet. App. 211 (1993).  

The Veteran in this case asserts that his current headaches are 
due to head injury or trauma sustained during his second period 
of active service.

"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).  

As noted, in Barr v. Nicholson, 21 Vet. App. at 308-09, the Court 
indicated that lay evidence was to be considered competent with 
regard to a disease with "unique and readily identifiable 
features" that was "capable of lay observation."  

That notwithstanding, a Veteran is not competent to provide 
evidence as to more complex medical questions and, specifically, 
is not competent to provide an opinion as to etiology in such 
cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); 
see also Routen v. Brown, 10 Vet. App. 183, 186 (1997).  

Here, the Board acknowledges the statements of the Veteran that 
generally describe an in-service injury to the head, but these 
assertions alone cannot constitute competent evidence sufficient 
to establish a diagnosis of a chronic headache disorder in 
service or a medical nexus opinion as to the likely etiology of 
the reported headache manifestations.    

As such, without addressing credibility, his lay observations 
only provided information about his headache manifestations over 
time that the VA examiner in February 2010 was free to consider 
in providing his medical opinion.  See Owens v. Brown, 7 Vet. 
App. 429, 433 (1995).  

Moreover, as lay statements, the Veteran's assertions are not 
found to be credible for the purpose of establishing a continuity 
of headache symptoms beginning in and ongoing after service.  As 
noted, the Veteran reported no headache complaints or previous 
head injury in service when he was examined shortly after 
service.

Finally, the Veteran has not presented any medical evidence to 
support his lay assertions that any current headache disorder was 
due to a head injury or other event of his active service.  

The Board notes that, when the determinative issue involves 
medical causation or a medical diagnosis, competent medical 
evidence is required.  Grottveit v. Brown, 5 Vet. App. 91 (1993).  
Thus, on this record, the Board finds the VA examiner's opinion 
to be controlling in deciding this appeal.   

Accordingly, the Board concludes that the preponderance of the 
evidence is against the claim of service connection for a chronic 
headache disorder.  See Gilbert, 1 Vet. App. at 55.  




ORDER

Service connection for claimed tension headaches is denied.  


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals




 Department of Veterans Affairs