Citation Nr: 1042002	
Decision Date: 11/08/10    Archive Date: 11/18/10

DOCKET NO.  10-37 450	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUE

Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans 
Affairs


ATTORNEY FOR THE BOARD

Stacey R. Laskin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1942 to December 
1943.

This matter is before the Board of Veterans' Appeals (Board) on 
appeal from a rating decision dated in October 2009 by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio. 


FINDING OF FACT

The Veteran's headaches began during service and have continued 
since service.


CONCLUSION OF LAW

The Veteran's headaches were incurred in active service. 
38 U.S.C.A. § 1111, 5107(b) (2002); 38 C.F.R. §§ 3.102, 3.303, 
3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law which 
it is required to apply. This includes statutes enacted by 
Congress and published in Title 38, United States Code ("38 
U.S.C.A."); regulations promulgated by VA under the law and 
published in the Title 38 of the Code of Federal Regulations ("38 
C.F.R.") and the precedential rulings of the Court of Appeals for 
the Federal Circuit (as noted by citations to "Fed. Cir.) and the 
Court of Appeals for Veterans Claims (as noted by citations to 
"Vet. App.").

The Board is bound by statute to set forth specifically the issue 
under appellate consideration and its decision must also include 
separately stated findings of fact and conclusions of law on all 
material issues of fact and law presented on the record, and the 
reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited 
statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 
(1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The 
Board's statement of reasons and bases for its findings and 
conclusions on all material facts and law presented on the record 
must be sufficient to enable the claimant to understand the 
precise basis for the Board's decision, as well as to facilitate 
review of the decision by courts of competent appellate 
jurisdiction. The Board must also consider and discuss all 
applicable statutory and regulatory law, as well as the 
controlling decisions of the appellate courts).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (2000) sets forth the obligations of VA 
with respect to the duty to assist and includes an enhanced duty 
to notify a claimant as to the information and evidence necessary 
to substantiate a claim for VA benefits.

VA has a duty to notify the Veteran of any information and 
evidence needed to substantiate and complete a claim. 38 U.S.C.A. 
§§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2010). VA also 
has a duty to assist the Veteran in obtaining evidence necessary 
to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 
C.F.R. § 3.159(c) (2010).

As discussed in detail below, sufficient evidence is of record to 
grant the claim on appeal. Therefore, no further notice or 
development is needed with respect to this appeal.

Service Connection

The standard of proof to be applied in decisions on claims for 
veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 
2002). A veteran is entitled to the benefit of the doubt when 
there is an approximate balance of positive and negative 
evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits 
and the evidence is in relative equipoise, the veteran prevails. 
See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The 
preponderance of the evidence must be against the claim for 
benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 
(1996).

Generally, in order for a veteran to prevail on the merits for a 
service-connection claim, the Board must find medical evidence of 
current disability; medical or, in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease or 
injury; and medical evidence of a nexus between the claimed in-
service disease or injury and the present disability. 38 U.S.C.A. 
§ 1110; 38 C.F.R. § 3.303.

Further, lay evidence of in-service incurrence or aggravation may 
serve to support a claim for service connection by demonstrating 
the occurrence of lay-observable events or the presence of 
disability, or symptoms of disability, capable of lay 
observation, such as those seen in this case. See Davidson v. 
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau 
v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

The Board must make credibility determinations and otherwise 
weigh the evidence submitted, including lay evidence. See 
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In 
the evaluation of the evidence, VA adjudicators may properly 
consider internal inconsistency, facial plausibility, and 
consistency with other evidence submitted on behalf of the 
claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), 
aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see 
Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the 
Board has the "authority to discount the weight and probative 
value of evidence in light of its inherent characteristics in its 
relationship to other items of evidence"). 

In a May 2009 claim, the Veteran contended that his headaches 
began in June 1943 and that he received treatment for these 
headaches in service. In an accompanying statement in support of 
his claim, also received by VA in May 2009, the Veteran stated 
that he continued to have problems with headaches since before 
his discharge from military service. In a June 2009 statement, 
the Veteran stated that the headaches began while he served in 
the Navy as a signalman, a job which required him to monitor a 
console that had several blinking lights as part of the Morse 
code system. 

In service, the Veteran was treated for headaches in August 1943. 
On August 20, the Veteran complained of a severe headache which 
started over the eye and worked backward. The Veteran was 
admitted to the hospital on that same day, where he was 
diagnosed, in part, with "hysterical conversion symptoms because 
of headaches." 

The Veteran submitted an April 1943 life insurance application on 
which he indicated that he had headaches and took daily 
medication to treat his headaches. The Veteran also submitted 
August 2009 and November 2009 letters from a private physician 
who stated that the Veteran had been a patient for more than 10 
years and had a history of chronic headaches. In the August 2009 
letter, the physician stated that the Veteran had received 
treatment and medication for his headaches, but still continued 
to suffer on a regular basis. The November 2009 letter indicated 
that the Veteran was prescribed medication for his headaches. 

At a September 2009 VA compensation and pension examination, the 
Veteran again stated that his headaches began during active 
service in 1943. The Veteran asserted that his headaches had 
continued since military service. The Veteran reported an 
incident in July 2009 when he was sent to the Emergency Room for 
evaluation of his headaches. The Veteran stated that the 
headaches occurred intermittently with remissions and that he 
experienced a headache weekly. The VA examiner determined that 
she could not state whether the Veteran's headaches were incurred 
in or related to an incident of military service without 
resorting to speculation because there was no documentation to 
support a 66-year chronicity of symptoms.

The Veteran is competent to state that he has experienced the 
same headaches that he displayed in service until the present. 
See Davidson, 581 F.3d at 1316; Charles v. Principi, 16 Vet. App. 
370, 374-75 (2002) (A veteran is competent to testify to in-
service and post-service symptoms). Additionally, the Veteran has 
submitted competent medical evidence indicating that he began 
daily medication for headaches prior to leaving service and that 
he has received treatment for headaches for at least the last 10 
years. 

The Board has considered the Veteran's credibility in his lay 
assertions under Buchanan. 451 F.3d at 1335. The Veteran's 
assertions are internally consistent throughout the record, 
supported by evidence of treatment for headaches in service, and 
consistent with medical evidence that the Veteran took daily 
medication for headaches for long periods of time during the 
period subsequent to service. 

Having carefully considered the Veteran's contentions in light of 
the evidence of record and the applicable law, the Board finds 
that the weight of such evidence is in approximate balance and 
the claim will be granted on this basis. 38 U.S.C.A. § 5107(b); 
Alemany, 9 Vet. App. at 518; Brown v. Brown, 5 Vet. App. 413 
(1993) (Under the "benefit-of-the-doubt" rule, where there 
exists "an approximate balance of positive and negative evidence 
regarding the merits of an issue material to the determination of 
the matter," the claimant shall prevail upon the issue).


ORDER

Entitlement to service connection for headaches is granted.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs