Citation Nr: 1128080 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-27 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tension headaches, to include on a secondary basis. 2. Entitlement to service connection for a neck condition, to include on a secondary basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to August 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claims for service connection for tension headaches and neck pain. This appeal was previously before the Board and the Board remanded the claim in March 2010 for additional development. The case has been returned to the Board for further appellate consideration. In December 2009, a Travel Board hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran suffers from a diagnosed headache disability. 2. The preponderance of the evidence is against a finding that the Veteran suffers from a diagnosed neck disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tension headaches have not been met. 38 U.S.C.A. §§ 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2010). 2. The criteria for establishing service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a August 2005 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. An April 2010 letter also provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The April 2010 letter also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The case was last readjudicated in April 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the reports of VA examinations, VA treatment reports, hearing testimony, and written statements from the Veteran. The Board also notes that the remand instructions were substantially complied with. In this regard, the Veteran was provided corrective VCAA notice in April 2010, in which he was requested to identify and provide a release for all medical care providers that have treated him for his claimed tension headaches and a neck condition; VA treatment records dating from 2006 to 2010 were obtained; and the Veteran underwent two VA examinations. Accordingly, there is no prejudice to the Veteran by deciding the claim. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this 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 has been an active participant in the claims process by providing hearing testimony, reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. 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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2010). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform to Allen; however, under the facts of this case, the regulatory change does not impact the outcome of the appeal. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Veteran contends that he is entitled to service connection for tension headaches and a neck condition because such disabilities were incurred during active service or are secondary to his service-connected right shoulder disability, status post Mumford procedure. I. Factual background The service treatment records show that the Veteran sought treatment for complaints of headaches and neck pain. A January 2005 entry indicates that the Veteran complained of having a headache, neck pain, and ear ache on the right side for one month. After a physical examination, the assessment included spasm/trigger point of the right neck and shoulder, and tension headache. The treatment plan included medications and exercise. A February 2005 individual sick slip also indicates a complaint of neck pain. In April 2005, the Veteran was seen for complaints of right neck pain and tension headaches that he reported had lasted for five months. In a post-deployment health assessment the same month, the Veteran reported that either at that time or during the deployment, he had experienced headaches. In May 2005, he again complained of tension headaches. During the June 2005 separation examination, the Veteran reported a history of frequent or severe headaches, which he noted were tension headaches, but upon clinical evaluation, the head, face, neck, and scalp were found to be normal. The Veteran was provided a VA examination with QTC Medical Services in October 2005. With regards to his claimed neck condition, he reported that he had been suffering from tension points. The condition had existed since December 2004. The Veteran said that due to the condition, he had experienced pain located at the right side of the neck for one year. The pain occurred three times per day and each time lasted for one hour. The pain was localized and squeezing and cramping in nature. The pain came on by itself and was relieved by rest. The Veteran also stated that he had been suffering from tension headaches, which had also existed since December 2004. He reported having recurring headaches which were not migraines. He said that it was a tension headache due to neck pain. The headache attacks averaged once every two days and each attack lasted for 30 minutes. He said that he was not receiving any treatment for the headache condition. Upon physical examination, the cervical spine showed no evidence of radiating pain on movement, and no muscle spasm, tenderness, or ankylosis. There were no signs of intervertebral disc syndrome with chronic and permanent root involvement, and the cervical spine X-ray findings were within normal limits. The examiner concluded that for the Veteran's claimed neck condition, there was no diagnosis because there is no pathology to render a diagnosis. Likewise, for the claimed condition of tension headaches, there was no diagnosis because there was no pathology to render a diagnosis. VA treatment records dating since March 2006 show that the Veteran has complained of, been assessed with, and treated for headaches and neck pain related to his right shoulder pain. It was noted that the shoulder pain radiates up the right side of the neck and causes a tightening of the muscles at the right side of the neck, in addition to tension headaches on the right side. Physical examination of the neck has shown trigger points in the upper and mid trapezius. In support of his claims, the Veteran submitted an August 2007 letter from an Atlanta VA physician. The letter indicated that the Veteran receives primary care at the East Point Community Based VA Clinic. The physician had initially evaluated him in August 2006. The Veteran had a history of progressive worsening of his right shoulder pain and surgical repair was required for it in January 2005. The physician said that the Veteran has had chronic right shoulder pain and referred pain on the right side of the neck with headache since the time of the January 2005 right shoulder surgical repair. The Veteran's pain management at that time consisted of multiple medications. The Veteran was referred to physical medicine and rehabilitation for additional evaluation and treatment in March 2006 and May 2007, but he was not able to make the appointments. During the December 2009 hearing before the undersigned Veterans Law Judge, the Veteran testified that he experiences headaches and neck pain that are worse when his service-connected shoulder flares up. He said that if his shoulder is not bothering him, he does not get the headaches as much, and that the neck pain coincides with the headaches. He stated that the headache pain is located on the backside of the neck behind his ear. The Veteran denied having had a specific injury to his neck. He indicated that his contention was that pain radiates up from his shoulder and causes his neck pain and headaches. He said that his treatment for such conditions included medication. He also received a cortisone shot, primarily for his shoulder, which did not help the neck pain or the headaches. His representative indicated that the Veteran was not able to go through therapy because of the distance. VA treatment records show that in January 2010, a VA physician drafted a letter for the Veteran indicating that the Veteran had been receiving multiple treatment modalities for chronic right shoulder pain, referred pain to the right side of the neck, and headache since he enrolled in the VA health care system. The pain management consisted of multiple medications, physical therapy, acupuncture, and joint injections. Pursuant to the Board's March 2010 remand, the Veteran was provided with a VA spine examination in June 2010, during which the claims file was reviewed. The examiner noted that the service records show that the Veteran underwent surgery on the right shoulder for a labral tear and various other procedures were done at the same time to the right shoulder. There examiner said that there was no evidence that the Veteran had a neck problem or a neck injury. The examiner noted that the Veteran was receiving medication for discomfort in the arm and neck, and for headaches. He has had no surgery on the neck, no injection into the neck, and was not doing any physical therapy for the neck. He did not use a neck brace. The Veteran reported that he had pain at the nape of the right part of the neck radiating from the top of the shoulder to behind the ear. He did not have any pain in the middle of the back of the neck and did not have any pain on the left side. There was no evidence that any of the pain radiates down either arm to the hands or fingers. It appeared that the pain was associated with movements of the right arm. The onset of the neck pain more or less occurred after the Veteran had surgery on the right shoulder. He said that after the surgery he had generalized pain. This gradually became limited in extent, but the Veteran still had right shoulder pain and pain at the nape of the neck. When asked whether he feels that this pain on the right side of the neck is associated with the shoulder, the Veteran said yes. Physical examination revealed the Veteran to be a healthy-looking individual who was in no acute pain at that time. He maintained cervical lordosis and there was no paravertebral spasm. He had vague tenderness over all the spines, but then also in the posterior thoracic area and the right part of the shoulder. He had less and less tenderness as one moved to the left shoulder. Range of motion of the neck measured with a goniometer revealed forward flexion of 0 to 70 degrees with no pain, extension of 0 to 35 degrees with no pain, right lateral flexion of 0 to 35 degrees with no pain, left lateral flexion of 0 to 15 degrees with pain at 15 degrees, lateral rotation to the right of 0 to 45 degrees with no pain, and lateral rotation to the left of 0 to 30 degrees with pain at 30 degrees. The ranges of motion were done three times and there was evidence of pain as noted above, but no evidence of fatigue, weakness, lack of endurance, instability, or incoordination with repeated testings. There was no additional loss of joint function or motion with use due to pain with repeated testings. The Veteran's neurological examination was normal. X-rays of the cervical spine were normal, as the Veteran had normal vertebral bodies. There were no osteophytes. The disc spaces were well maintained and the intervertebral foramina were well maintained. The impression was that the Veteran had documented disease of the right shoulder and the current pain went from the right shoulder to the nape of the right neck. There was no evidence that he had pain in the middle of the neck or on the left side. There was no evidence of radiation of pain down the arm. The Veteran gave no history of injury to the neck during his service career and agreed that the pain on the right side of the neck is connected with the shoulder because moving to the left, in other words, stretching the right side of the neck or moving the shoulder, aggravates the pain. The examiner noted the report of the October 2005 QTC examination and stated that range of motion during the examination was repeated several times and revealed a very similar range of motion. However, at that time, it was noted that on moving his neck ranging to the right the Veteran had no pain, but ranging to the left he had pain and this was causing stretching of the muscles connected with the right shoulder. With regards to diagnosis, the examiner stated that there was no cervical spine condition found. The examiner explained that at that time, no cervical disease could be identified on clinical examination or on X-ray and that the pain on the right side of the neck is associated with the service-connected right shoulder condition and was not a separate neck condition. In July 2010, the Veteran was also provided with a VA neurological disorders examination to evaluate his claimed tension headaches, during which the claims file was reviewed. The examiner observed that the Veteran injured his shoulder in December 2004 and had surgery with removal of the distal clavicle and a Bankhart repair of his right shoulder. Review of the service records revealed several visits between January and June 2005 for shoulder pain, tension headaches, and right neck pain. The examiner stated that the service records indicate that the tension headaches were a slight complaint and not the main cause for the visits. The examiner noted that the Veteran had been seen several times at VA desiring a statement from his attending stating that his headaches are secondary to his shoulder surgery. The examiner said that the VA physical stated that he felt that the headaches were secondary to the Veteran's shoulder, but no rationale was given. The examiner also noted that no pathology was found with regards to a headache disability during the previous VA examination. The examiner also indicated that the service records show that the Veteran as seen in January, April, and May 2005 for tension headaches. The Veteran denied having any flares of headaches and reported that precipitating factors were movement of the head and alleviating factors were standing still or lying down. The frequency of headaches was every other day. The severity was 5/10 and the duration was from 1 to 4 hours. The Veteran endorsed having pain but denied weakness or functional loss. The treatment was medication and the Veteran indicated that the response to such was poor. The headaches did not affect his job as an inventory control manager. Likewise, they did not affect his activities of daily living. Upon physical examination, the Veteran's pain level was 0/10 and the head showed no signs of trauma, tenderness, or redness. With regards to the level of activity obtainable during attacks, the Veteran could work through the headaches. Strength and coordination were normal and there were no tremors. The examiner stated that as there was no pathology found, there is no diagnosis for the Veteran's complaint of headaches secondary to the service-connected shoulder injury. The examiner provided the opinion that the Veteran's complaints of headaches are less likely than not secondary to his service-connected shoulder injury, and his complaints of tension headaches during his military service are less likely than not secondary to his service-connected should injury. The examiner's rationale was that as there was no pathology found, there is no diagnosis for the Veteran's complaints of headaches secondary to his service-connected shoulder injury. Other than a few visits during his service when he mentioned tension headaches, and the request for his VA physician to give a letter stating that his headaches were secondary to his shoulder injury, there is no pathology found and therefore no diagnosis of a neurological problem of the head secondary to his shoulder injury. Further, the examiner stated that the Veteran was only seen a few times in the service for complaints of tension headaches, and there was no diagnosis of a chronic headache disorder. II. Headaches After reviewing the evidence of record, the Board finds that the record fails to establish that a currently diagnosed headache disability exists. In this regard, while the Veteran has complaints of headaches manifested at the right side of the back of the head as radiating pain from his right shoulder, the preponderance of the evidence indicates that such complained-of headaches are not a separately diagnosed condition. Although VA clinicians have indicated that the Veteran has been treated for referred pain on the right side of the neck with headache since the time of the January 2005 right shoulder surgical repair, VA treatment records indicate that the shoulder pain radiates up the right side of the neck, causing a tightening of the muscles at the right side of the neck and headaches behind the right ear. Additionally, the Veteran testified that pain radiates up from his shoulder and causes his neck pain and headaches. Thus, the VA treatment records suggest, and his testimony supports the conclusion, that the Veteran's complaints of headaches are manifestations of radiating pain from the service-connected shoulder disability, rather than a separately diagnosed headache disability. Moreover, the October 2005 VA QTC examiner determined that for the Veteran's claimed condition of tension headaches, there was no diagnosis because there was no pathology to render a diagnosis. Likewise, the July 2010 VA examiner stated that as there was no pathology found, there is no diagnosis for the Veteran's complaints of headaches. The examiner noted that there was no diagnosis of a current neurological problem of the head and no diagnosis of a chronic headache disorder during service. The examiner formed this opinion after review of the claims file and examination of the Veteran, and a rationale for the examiner's conclusion was provided. The examiner also considered the VA physician's statement that he felt that the headaches were secondary to the Veteran's shoulder disability, when rendering the opinion. Although he is competent to state his symptoms, the Veteran is not, as a layperson, qualified to render a medical diagnosis that his radiating pain is an actual headache disability, as the disability at issue requires medical expertise to diagnose and evaluate. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the preponderance of the competent medical evidence of record weighs against the existence of a separate underlying headache disability. Such medical evidence is of greater probative value than the Veteran's lay opinion. In the instant case, the claim for service connection for tension headaches is denied. The Board has considered the Veteran's complaints of shoulder pain radiating to the back of his head; however, the most probative evidence fails to reflect an underlying chronic headache disability. In summary, the Board finds that the preponderance of the competent evidence of record weighs against finding that a current underlying headache disability (separate from the already service-connected right shoulder disability) exists. Accordingly, service connection is not warranted for the claimed tension headaches on a direct or secondary basis. III. Neck pain After reviewing the evidence of record, the Board finds that the record fails to establish that a currently diagnosed neck disability exists. In this regard, while the Veteran has ongoing complaints of and has received treatment for neck pain, the record shows that such is not a separately diagnosed condition. Although VA physicians have indicated that the Veteran has been treated for referred pain on the right side of the neck since the time of the January 2005 right shoulder surgical repair, VA treatment records indicate that the shoulder pain radiates up the right side of the neck, causing a tightening of the muscles at the right side of the neck. Additionally, the Veteran testified that pain radiates up from his shoulder and causes his neck pain. Thus, the VA treatment records suggest, and his testimony supports the conclusion, that the Veteran's complaints of neck pain are a manifestation of pain radiating from the service-connected shoulder disability, rather than a separately diagnosed neck disability. Moreover, after examining the cervical spine and noting that cervical spine X-rays were within normal limits, the October 2005 VA QTC examiner determined that for the Veteran's claimed neck condition, there was no diagnosis because there was no pathology to render a diagnosis. Likewise, the June 2010 VA examiner stated that there was no cervical spine condition found, explaining that at that time, no cervical disease could be identified on clinical examination or on X-ray. The examiner noted that it appeared that the pain on the right side of the neck is associated with the service-connected right shoulder condition and was not a separate neck condition. The examiner formed this opinion after review of the claims file and examination of the Veteran, and a rationale for the examiner's conclusion was provided. Although he is competent to state his symptoms, the Veteran is not, as a layperson, qualified to render a medical diagnosis for neck disorders, as the disability at issue requires medical expertise to diagnose and evaluate. See Layno, supra; see also Jandreau, supra. Here, the preponderance of the competent medical evidence of record weighs against the existence of a diagnosed neck disability. Such medical evidence is of greater probative value than the Veteran's lay opinion. In the instant case, the claim for service connection for a neck disability must be denied as he does not have an underlying neck disability. No separate neck disability has been diagnosed. While he is noted to have neck pain, pain alone without a diagnosed or identifiable underlying disability, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22 (1998) (holding that there was no objective evidence of a current disability, where the medical records showed the Veteran's complaints of pain, but no underlying pathology was reported). In summary, the Board finds that the preponderance of the competent evidence of record weighs against finding that a current underlying neck disability (separate from the already service-connected right shoulder disability) exists. Accordingly, service connection is not warranted for a neck disability on a direct or secondary basis. IV. Other considerations In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a headache disability is denied. Entitlement to service connection for a neck disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs