Citation Nr: 1300553 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-42 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to a total disability rating due to individual unemployability resulting from service connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 and a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied entitlement to service connection for headaches and entitlement to TDIU. The Veteran and his spouse provided testimony at the RO before a Decision Review Officer (DRO) in March 2009 and before the undersigned in August 2012. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's chronic headaches began during service and have continued since. CONCLUSION OF LAW The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (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, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a Veteran 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, 3.326(a) (2011). To the extent the Board is granting the claim of entitlement to service connection for headaches, the issue on appeal is substantiated and there are no further VCAA duties with regard to that issue. Wensch v. Principi, 15 Vet App 362 (2001) (VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his current headaches began during service and have continued since. Service treatment records demonstrate that the Veteran denied severe or frequent headaches in a January 1967 report of medical history and the associated separation examination was negative for any relevant findings. The only record of treatment for headaches came that same month, about two weeks after the separation examination, when he complained of headaches and a cold. The Veteran was discharged in April 1967. Throughout his VA treatment beginning in 2002, including during treatment beginning in September 2004 before he initiated this claim, the Veteran reported that he had experienced headaches since 1967. He reported during treatment in 2004 and 2005 that the headaches had been more often minor, often successfully treated by over-the-counter medication when taken right at the onset of pain, and that the more severe headaches were sporadic. In his June 2005 claim, he reported that the headaches began during 1966 and he was first treated for them in 1967. In a May 2006 statement, the Veteran reported that the headaches began in 1966 and that he regularly took aspirin during service. The Veteran also reported in the May 2006 statement that he first sought treatment at VA in 1969, but that VA did not initially "find anything wrong with his head." It was not until he received a private examination in connection with his employment that he was diagnosed with migraines. During the Board hearing, he again reported that he first sought treatment for the headaches at VA by 1969. In response to a request for any related records, a VA facility confirmed that the Veteran was treated by VA between 1969 and 2002, but the records were no longer available. The available VA treatment records demonstrate consistent treatment for headaches or migraines beginning in December 2002. During the August 2012 Board hearing, the Veteran stated that his headaches began during service, he sought treatment within a couple of years following discharge for headaches, and his headaches have continued ever since. His wife also testified that he had complained of headaches ever since she met him in 1970. He and his wife are competent to report current symptoms such as headaches and when such symptoms began or were discussed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In May 2012, a VA examination was conducted following a review of the claims file and VA treatment records. The examiner noted the single instance of treatment for a headache during service, noted that it was also associated with a cold or upper respiratory infection, and stated that this did not indicate any pattern of recurrent headaches. The examiner also found significant that the Veteran denied frequent or severe headaches during service. During the examination, the Veteran reported that he had just taken aspirin during service and did not go to sick call for the headaches. However, the examiner concluded that since the Veteran was treated for several other minor complaints, it was less likely as not that he would not have been to sick call if he was in fact having a pattern of recurrent or chronic headaches. Finally, the examiner noted that there was an absence of treatment or complaints for headaches between discharge and 2002. Given that there was no documentation of any pattern of headaches or head injury in the service treatment records and no documentation of treatment for chronic headaches/migraines until 2002, the examiner concluded that it was less likely than not that the Veteran's current headaches were incurred in or caused by service. The Board takes issue with the examiner's findings for several reasons. First, as the Veteran reported during VA treatment in 2004, his headaches were more often minor and often treated successfully with over-the-counter medication. The Board does not agree that the Veteran would more than likely have gone to sick call for minor headaches successfully treated with aspirin, even if they were recurrent, as he could obtain the aspirin on his own. Moreover, as noted above, the single instance of documented treatment for headaches occurred after the Veteran's separation examination and report of medical history. Therefore, the Board does not find the fact that the Veteran denied severe or frequent headaches during service or that there was not additional documentation of treatment during service to be as significant or dispositive as the examiner did in the May 2012 opinion. In addition, the Court has held that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board finds particularly probative the hearing testimony regarding the in-service incurrence and continuity of symptomatology provided by the Veteran and his spouse and acknowledges that this hearing occurred after the VA examination. Nevertheless, the Board finds that the examiner did not adequately consider the lay evidence of record at that time, and, at the very least, disagrees with the examiner's conclusions regarding the Veteran's credibility. Although there is no medical evidence to support the Veteran's contentions that his headaches began during service, the Board does not find any evidence which sufficiently contradicts this testimony. Moreover, while there is no post-service medical evidence of a headache disability until 2002, the Veteran and his spouse have consistently described a continuity of symptomatology since service. The Veteran reported this continuity to VA treatment providers before he filed a claim for service connection and the evidence of record does not contain information that contradicts the Veteran's reports. At the very least, the Board finds that the evidence is in equipoise. Resolving reasonable doubt in the Veteran's favor, the lay statements are deemed credible and are sufficient to establish the incurrence of an in-service injury and a continuity of symptoms thereafter. Therefore, service connection is warranted. ORDER Service connection for headaches is granted. REMAND TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the Veteran's service connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (1998). Regulations require that VA consider the combined effects of the service connected disabilities have on employment. 38 C.F.R. § 4.16. Hence, the Board is required to obtain an opinion that considers the combined effects of the service connected disabilities on employability. The record does not include a VA opinion by a qualified medical professional that assesses what impact the Veteran's service-connected disabilities in combination have on his ability to obtain and maintain employment. In this regard, the Board notes that service connection was just granted above and bilateral hearing loss and tinnitus was granted in November 2008. A September 2008 cold injury and peripheral nerves examination and the May 2012 VA headaches examination do not provide the opinion needed. Moreover, it appears based on the Veteran's testimony that his right hand and bilateral lower extremity disabilities may have worsened since his last examination in 2008. As such, a remand is necessary to properly adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the combined impact the Veteran's service-connected disabilities on his ability to obtain and maintain gainful employment. The examiner should review the claims folder and note such review in the examination report. The examiner should also consider the Veteran's level of education and employment experience. If a separate examination is required to assess the current severity of any disability, it must be conducted. The examiner should provide an opinion as to whether the service-connected headaches, bilateral hearing loss, tinnitus, cold injury of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, and peripheral neuropathy of the right upper extremity would alone or together prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion. 2. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs