Citation Nr: 1128233 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 06-30 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) from July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a headache disorder. In December 2009, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's current headache disorder first manifested many years after service and is not related to his service or to any aspect thereof. CONCLUSION OF LAW A headache disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders, including organic diseases of the nervous system, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). The Veteran contends that his current headaches first had their onset during active service. Service medical records reflect that in July 1974, the Veteran reported a severe headache with associated nausea and vomiting. He also had mild congestion. The symptoms had begun the previous night while on tactical training. He had no previous history of headaches or migraines. He felt fine the next day. The impression was headaches of unknown etiology, rule out high blood pressure. He was advised to check his blood pressure when he returned home. There are no further records of any complaints of or treatment for headaches and on August 1978 separation examination, no headache disorder was reported or diagnosed. Because there is no indication that the Veteran suffered from a chronic headache disorder following the July 1974 record of treatment, and no headache disorder was diagnosed on examination at separation from service, the medical evidence is against a finding that the Veteran suffered from a chronic headache disability during service. 38 C.F.R. § 3.303(b) (2010). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection for a headache condition. 38 C.F.R. § 3.303(b) (2010). A review of the claims file reflects that although the Veteran filed claims for service connection for other disabilities in March 1982, March 1999, and in August 2002, a claim for headaches was not made. Nor is there evidence that the Veteran suffered from headaches on the corresponding VA examinations conducted in June 1982, May 1999, or in January 2003. VA treatment records beginning in April 2001 reflect that in June 2004, neurological examination was normal. A July 2006 history and physical assessment for hospitalization for treatment of diabetic orthopedic complications showed no history of headaches or any vascular or neurological symptoms related to headaches. In November 2006, the Veteran reported having headaches associated with sinusitis. An April 2007 list of current diagnoses did not demonstrate a diagnosis of a headache condition. In September 2007, on a routine check-up, the Veteran denied having any headaches. At a June 2008 hearing before a decision review officer, the Veteran stated that while in service, he was told to treat his headaches with Tylenol and to lay in a dark room. He had since treated his headaches according to that advice. He stated that he had been recently advised to take Ibuprofen for his headaches, but that his physician had not related his headaches to any particular condition because he had low blood pressure on examination. He had headaches about once per week lasting from four hours to all day. On February 2010 VA examination, the Veteran reported an onset of headaches while stationed in the field in Germany in 1972. He reported that his headaches had recently been diagnosed as migraines at the VA and that he had been given Imitrex tablets that relieved the pain. He stated that most of his migraine attacks were prostrating. Physical examination revealed normal motor and sensory movements. Examination of the cranial nerves was normal, as was cerebellar examination. The diagnosis was headaches. The examiner reviewed the Veteran's VA medical records and did not find any diagnosis of headaches or medication that had been prescribed for treatment of headaches. The examiner stated that an opinion with regard to the etiology of the Veteran's described headaches could not be made without resort to mere speculation. In so stating, the examiner explained that absent any evidence in the VA treatment records of a diagnosis of or treatment for a headache disorder in the years since service, or any indication that the Veteran has undergone any sort of specialist consultation to determine the type or kind of headaches, he could not link the current symptoms of headaches to the incident shown in service. In March 2010, the same examiner stated that the Veteran's service medical records and claims file had been reviewed, but that the February 2010 opinion remained unchanged. In this case, there is no evidence of any headache condition for which service connection may be granted on a presumptive basis within one year of his separation from service. Therefore, the Veteran is not entitled to service connection for a disability described as an organic disease of the nervous system, chronic headaches, on a presumptive basis. 38 C.F.R. § 3.307 (2010). Further, the Board notes that after the 1974 in-service report of and treatment for a severe headache, the first indication in the post-service treatment records that the Veteran suffered from headaches or was diagnosed with any sort of headache disorder is not until the February 2010 VA examination, approximately 32 years after his separation from service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In that regard, although the Veteran underwent VA examinations in June 1982, May 1999, and January 2003 for other claimed disabilities, he gave no report of headaches or symptoms of headaches at those times or at any other instance in the intervening years. Significantly, VA treatment records dated from April 2001 to March 2010 do not demonstrate that the Veteran was diagnosed with a headache disorder or was prescribed medication for migraines, as the Veteran contends. Lists of the Veteran's current diagnoses dated in November 2005 and April 2007 do not evidence that he suffered from a headache disorder or had been evaluated for symptoms of a headache disorder. Accordingly, the evidence does not show a continuity of symptomatology for a headache disorder since service, which also weighs against the Veteran's claim. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. In this case, the Board places probative weight on the March 2010 VA examiner's opinion as the examiner considered all of the evidence of record, to include the Veteran's service treatment records, post-service medical records, lay testimony, and reports of physical examinations and diagnostic testing, as well as the relevant medical literature in rendering the opinion. Although the examiner at first stated that no opinion could be made without resort to mere speculation, he then clarified by explaining that the lack of evidence of complaints of or treatment for a headache disorder when reviewing the VA treatment records and the claims file made it so that not only could a definitive diagnosis of a headache disorder not be made at that time, but to link the current symptoms with the in-service treatment for headaches, in light of the lack of evidence of symptoms in the intervening years, would be speculative. Thus, a nexus between the current headaches and service was not made. Because the opinion is well-reasoned and was based upon a thorough review of the claims file, the Board finds that the opinion contains clear conclusions with supporting data, and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, there is no contrary medical opinion of record. In this case, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss the symptoms of his current headaches. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While the Veteran is competent to describe the symptoms of his headaches, as well as a long history of experiencing headaches, the Board accords his statements regarding the etiology of his claimed headache disorder little probative value. The Veteran has only offered conclusory statements regarding the relationship between his headaches and his military service. Additionally, he did not address the fact that the first post-service diagnosis of a headache disorder was made many years following separation from service and he did not complain of headaches in the intervening years. Significantly, although the Veteran has reported a diagnosis of migraines and a prescription of Imitrex, the March 2010 VA examiner could find no such diagnosis or prescription when reviewing the claims file or computerized VA treatment records. Such findings lessen the Veteran's credibility with regard to his statements supporting his claim for service connection. Therefore, the Board finds that the Veteran's contentions regarding the etiology of his described headaches are outweighed by the competent and probative evidence of record, including the March 2010 VA examiner's findings. Moreover, the Veteran has not alleged a continuity of relevant symptomatology following his one in-service record of treatment for headaches. As previously noted, although claims for benefits were filed in 1982, 1999 and in 2002 and numerous disabilities were listed, a claim for headaches was not made. Additionally, contrary to the Veteran's assertions of experiencing headaches since service, VA examinations in 1982, 1999, and 2003 affirmatively show no complaints. This aforementioned are all factors that contradict the Veteran's assertions. Therefore, the Board finds that service connection for a headache condition is not warranted. The weight of the credible evidence demonstrates that the Veteran's headache disorder manifested many years after service and is not related to his active service or to any incident therein. As the preponderance of the evidence is against the claim for service connection for a headache disorder, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in February 2003, December 2004, and March 2006; a rating decision in July 2005; a statement of the case in August 2006; and a supplemental statement of the case in February 2007, December 2007, and in July 2008. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notice provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notice has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the January 2011 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for a headache disorder is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs