Citation Nr: 1124929 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 06-32 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from August 1979 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 Regional Office (RO) in Wichita, Kansas rating decision, which denied the claim on appeal. The Veteran's case was remanded by the Board for additional development in October 2009. The case is once again before the Board. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a headache disorder that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A chronic headache disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Board notes that VCAA letters dated in November 2005 and November 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The November 2009 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records VA medical records are in the file. Private treatment records identified by the Veteran have been associated with the claims file, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. In that regard, a review of the claims file includes a VA treatment record from March 2006 wherein the Veteran indicated that he intended to apply for benefits from the Social Security Administration (SSA). Normally, VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this case, however, there is no suggestion that any existing SSA records would be relevant to the currently appealed claim. Indeed, the record indicates that the application was based on the Veteran's psychiatric problems and not due to his headaches. As such, the Board finds that a remand to obtain SSA records is not required. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA is not required to obtain SSA records in all cases but only where potentially relevant to the claims on appeal). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010). The Board notes that in compliance with the Board's October 2009 directives, the Veteran was scheduled for a VA examination in June 2010. The claims file reflects that the Veteran did not attend the examination and has not thereafter explained why he could not attend the scheduled examination or requested another examination. The Board notes that the letter notifying the Veteran of the time and location of his VA examination is not of record; however, the Board presumes that the Veteran was properly notified of the scheduled examination. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010) (holding that the presumption of regularity applies to VA's procedures for scheduling and notifying veterans of VA examinations). Furthermore, the Veteran was made aware of the potential consequences of failing to report for a scheduled examination in the October 2009 Board remand. Moreover, the subsequent November 2010 supplemental statement of the case informed the Veteran that his claim was being denied, in relevant part, due to his failure to attend the schedule June 2010 examination. Finally, in a May 2011 statement, the Veteran's representative conceded that the Veteran failed to report for the scheduled examination and did not indicate any reason for the Veteran's failure to appear or request that the examination be rescheduled. The United States Court of Appeals for Veterans Claims (Court) has stated that the duty to assist is not a one-way street. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Furthermore, when a claimant fails to report for an examination scheduled in conjunction with an original service connection claim, regulations provide that the claim will be decided on the evidence of record. 38 C.F.R. § 3.655(b) (2010). Given the Veteran's choice not to submit to a VA examination, the Board finds that no further action is necessary to meet the requirements of the VCAA. Wood, 1 Vet. App. at 193; see also 38 C.F.R. § 3.655(b). Thus, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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 has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he incurred a head injury in service. The Veteran asserts that shortly after separation from service he began to experience headaches, which he attributes to his in-service head injury. Over the years his headaches have worsened. The Veteran's service treatment records indicate that at the time of his July 1979 entrance examination the Veteran denied a history of frequent or severe headaches. In October 1979, the Veteran complained of right earache, nausea, and headache. He was assessed as having acute respiratory distress. In February 1980, he reported runny nose, sore throat, and headache for 3 days. He was diagnosed with an upper respiratory infection. In November 1981, he complained of headache, stuffy nose, cough, and abdominal pain for the past 4 days. The assessment was a cold. In August 1982, the Veteran reported stomachache and diarrhea for the previous day, but denied headaches or dizziness. In August 1983, he noted headache and stomach upset for the previous day. The assessment was gastroenteritis. In December 1983, the Veteran was hit in the head by a sharp handle. There was no loss of consciousness, no dizziness, no nausea, and no vomiting. There was a 4 cm long contusion that was closed with 2 sutures. In January 1983, the Veteran complained of a headache, cold chills, and that his forehead felt hot. The assessment was resolving high temperature. At the time of the Veteran's March 1985 separation examination, he denied a history of frequent or severe headaches. Contemporary physical examination revealed a normal head and neurologic system. After service, the Veteran underwent in-patient treatment for alcohol dependence in August 1999 and reported multiple health problems, but did not complain of headaches. An October 1999 hospital discharge summary for substance abuse noted that the Veteran denied any neurological problems and did not otherwise indicate problems with headaches. A January 2000 hospital discharge summary following alcohol abuse treatment noted that his reported medical history included chronic left shoulder pain, decreased vision in the left eye, and possible hearing loss, but that he was otherwise fine. In April 2000, the Veteran first reported a history of headaches, stating that a couple of weeks previously he had fallen while drinking and hit his head above his eyes and that he had been experiencing headaches since that time. Subsequent x-rays of the skull showed no evidence of fractures and the sella turcica was normal. A November 2004 hospital discharge summary for substance abuse, psychiatric and physical problems included a diagnosis of headaches. The note indicated that the Veteran reported daily headaches and that he was hit in the head in the past. Subsequent treatment records include multiple diagnoses of headaches and periods of medication for headaches. Thus, during the appellate time period the Veteran has a diagnosis of headaches. The crucial inquiry, therefore, is whether any current headache disorder is related to any incident of service, to include his December 1983 head injury. In this regard, for the reasons and bases set forth below, the Board concludes that there is no credible and competent evidence of record demonstrating a continuity of headache symptomatology since service or any other credible and competent evidence linking any current headache disorder to the Veteran's military service. In reaching this decision, the Board has considered the Veteran's statements of headaches beginning shortly after service and worsening over time. First, it must be stressed that the Veteran concedes that his headaches did not begin in service. While the Veteran argues that the headaches began shortly after separation from service in April 1985 and attributes the headaches to his December 1983 head injury, the Board notes there was at least 16 months between the in-service injury and the onset of headaches. Even if this argument was accepted as credible, given the Veteran's lack of demonstrated medical expertise and the lack of continuity of headache symptomatology from service, the Board concludes that the Veteran is not competent to attribute any post-service onset of headaches to his December 1983 head injury or other incident of service. See 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); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Furthermore, the Board is also concerned with the credibility of the Veteran's assertions. In this regard, it must be noted that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here, the "inherent characteristics" of the Veteran's current statements as to the onset of his headaches are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. As noted above, the Veteran reported past histories of multiple health problems during his hospitalizations for alcohol dependence in August 1999, October 1999, and January 2000, but failed to report any history of headaches and, indeed, on one occasion specifically denied neurological problems. The first time the Veteran reported headaches after service, in April 2000, he noted onset a couple of weeks earlier after falling and hitting his head. He did not report ongoing headaches from service, as now claimed. Moreover, the November 2004 record noted daily headaches and a history of hitting his head, but the record does not attribute any current headaches to the December 1983 head injury or other incident of service. The Board finds that statements made directly to health care providers during the course of treatment are inherently more credible than those made directly to VA in support of a claim for benefits. Therefore, the Board finds that the history as demonstrated by these treatment records weighs heavily against finding the Veteran's current assertions of headaches beginning shortly after service that are related to his December 1983 in-service head injury to be credible. The Board has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether he experienced headaches from shortly after separating from service. Rather, this is a case where the treatment records show that the Veteran's headaches began after a fall where he hit his head in approximately April 2000. Prior to that date the Veteran had reported a history of multiple health problems but not headaches and, indeed, had denied a history of neurological problems. The Board finds it reasonable to conclude that if the Veteran had experienced headaches from shortly after separating from service that he would have so reported in August 1999, October 1999, or January 2000 and certainly in April 2000 when he attributed his headaches to a fall where he hit his head a couple of weeks previously. In short, the Board gives greater credence and weight to the contemporaneous medical records filed in this matter than to the recent assertions of headaches from shortly after service that the Veteran associated with his in-service head injury and made in support of his claim. Regardless of whether the Veteran is purposely mischaracterizing the events in service and thereafter or unintentionally doing so, the ultimate conclusion is that his current statements regarding a continuity of headache symptomatology from shortly after service are simply not credible evidence. As discussed above, there are objective documents and the Veteran's own statements that directly refute his claim of suffering from headaches from shortly after separating from service. Because of the inconsistency, the Board finds that the Veteran's allegations have no probative value. The Board is cognizant that there are in-service reports of headaches documented and the Board has considered whether such reports constitute evidence a chronic headache disability. However, each of the reports of headaches are accompanied by various other symptoms, such as coughing, runny nose, and nausea, and in each case the symptoms were attributed to a specific acute health problem, such as a cold or gastroenteritis. At no point were the reported headaches attributed to a separate, discrete, and chronic headache condition. Moreover, the Veteran specifically denied a history of frequent or severe headaches at the time of his separation examination. As such, the Board finds no evidence to suggest that the in-service reports of headaches constituted a chronic headache disorder, and, in fact, these records clearly demonstrate that in each instance the headaches constituted a manifestation of a specific acute illness. In summary, as there is no credible evidence of a continuity of symptomatology since service, no indication that the Veteran is competent to render a medical opinion otherwise linking his current headaches to service, and there is no other probative medical evidence linking any current headaches to any incident of military service, the Board concludes that the preponderance of the evidence is against granting service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for headaches must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for headaches is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs