Citation Nr: 1127491 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-00 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran had verified active duty from April 1982 to August 1982, from December 1990 to May 1991, and from January 2003 to March 2004, with additional periods of service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that denied service connection for a headache disorder. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in February 2007. A transcript of the hearing is of record. In a July 2009 decision, the Board remanded the claim for additional development, to include a VA examination and nexus opinion. There has been full compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). In the July 2009 decision, the Board also denied service connection for right and left arm disabilities, claimed as secondary to a service-connected cervical spine disability and right and left leg disabilities, claimed as secondary to a service-connected lumbar spine disability. The Board also referred the issues of entitlement to higher ratings for the service-connected cervical spine and lumbar spine disabilities to the RO. In doing so, the Board instructed that the RO was also to adjudicate whether separate compensable ratings were warranted for the Veteran's bilateral upper and lower extremity impairment. The Veteran appealed the Board's July 2009 decision to the Court of Appeals for Veterans Claims (Court). In July 2011, the Court affirmed the Board's decision as it related to the denial of service connection for the claimed disabilities of the bilateral upper and lower extremities. However, the Court modified the issues that the Board had referred back to the RO. The Court clarified that upon referral the RO should assess whether the Veteran's service-connected cervical and lumbar spine disabilities warranted increased disability ratings due to the manifestations of the [neurologic] manifestations in his upper and lower extremities (as opposed to adjudicating whether the manifestations in the upper and lower extremities are separate disabilities capable of separate compensation apart from the Veteran's service-connected disabilities). The referred issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the issues of entitlement to increased ratings for the Veteran's service-connected cervical and lumbar spine disabilities, to include consideration of the [neurologic] manifestations in his upper and lower extremities, are once again referred to the AOJ for the appropriate action. Finally, in June 2011, following the issuance of the last Supplemental Statement of the Case, the Veteran submitted additional medical evidence without a waiver. However, this evidence is duplicative of evidence already of record and the Board is granting the claim in full. Accordingly, a remand for RO consideration of this evidence is unnecessary. FINDING OF FACT A current headache disorder had onset in military service and is related to a service-connected disability of degenerative disc disease of the cervical spine, status postoperative discectomy. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, a headache disorder was incurred as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for a headache disorder. This represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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 or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2007); Allen v. Brown, 7 Vet. App. 439 (1995). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service treatment records show that the Veteran injured his neck and back after falling down an embankment. A July 2002 treatment note shows that he complained of headaches, as well as pain that radiated from his neck down into the left shoulder. At a November 2003 Medical Board examination conducted prior to separation from service, the Veteran reported that he experienced headaches two to three times a week. He also reported that he felt dizzy upon standing. Post-service VA and private treatment records show ongoing complaints of chronic headaches. At a hearing before the undersigned that was held in July 2007, the Veteran testified that his headaches initially began in service after his fall in 2002, and had continued ever since. He denied having experienced headaches prior to service, or prior to his fall. The Veteran was afforded a VA examination in August 2009 to determine the etiology of his claimed headache disorder. Following a review of the claims file and physical examination, the examiner stated there was little evidence in the records to indicate the presence of headaches; however, he diagnosed tension headaches based on the Veteran's description of his symptoms. The examiner noted that cervicalgia does not cause tension headaches, but it may exacerbate them. However, the examiner also opined that based on the evidence, he estimated that the Veteran's service-connected cervical spine disorder would be responsible for a few headaches a year that would be prostrating. In a November 2010 addendum to this opinion, the examiner stated that he could only speculate as to how much influence the Veteran's cervical spine disease may or may not have on his headaches, because there is no way to know to what extent the cervical spine disease would likely or unlikely exacerbate the headache disorder. He further indicated that he could only speculate as to whether the Veteran actually has the headache disorder that he claims, as there is little documentation to support its existence or severity compared to the absence of such complaints in service. Based on the evidence presented, the Board finds that a current disability has been established. A VA examiner has diagnosed the Veteran with tension headaches. Moreover, the Veteran is competent to report that he has readily identifiable symptoms such as chronic headache pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). The Veteran also has credibly reported that he experienced headaches during service after his accidental fall in 2002. Despite the VA examiner's finding that there is no evidence of a complaint of headaches during service, the Board notes that the service records do reflect such complaints. As a current disability and an in-service injury have been established, the Veteran only need establish a nexus between the current headache disorder and service or a service-connected disability. The Board finds that the required nexus has been established in this case. The Veteran is currently service-connected for degenerative disc disease of the cervical spine, status postoperative discectomy. The VA examiner has opined that the Veteran's service-connected cervical spine disease would be responsible for a few prostrating headaches every year. In addition, the Board notes that a continuity of symptomatology can serve to satisfy the requirement for a nexus between an in-service event and a current disability. Here, a history of headaches was noted during service and upon separation, and the Veteran reports that his headaches have continued since then. His testimony is credible and furthermore, it is supported by the VA and private treatment records. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, the required nexus is met. With these considerations in mind, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of service connection for a headache disorder. See 38 U.S.C.A. §§ 1154, 5107(b). ORDER Service connection for a headache disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs