Citation Nr: 1304895 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-44 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for right knee impairment. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from November 1989 to January 1994. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's current migraine headaches either began during, were caused by, or were aggravated by, her military service. 2. The weight of the evidence is against a finding that the Veteran currently has a right knee disability which either began during, or was otherwise caused by, her military service. CONCLUSIONS OF LAW 1. Criteria for service connection for migraine headaches have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for migraine headaches and a right knee disability. For reasons that will be discussed above, the Board does not find the evidence supports a grant of service connection in either claim. The Board will address the Veteran's migraine headaches first. Migraines The Veteran is currently seeking service connection for migraine headaches. The Veteran alleges that she began experiencing migraines while she was in service, and they have continued to this day. The Veteran relates her migraines to her exposure to noise, heat, and fumes while working in the boiler and engine rooms of the U.S.S. Canopus in the Navy. Private treatment records from October 2006 list migraines on the list of new medical problems. The Veteran was then proscribed medication to treat her migraine condition, which the Veteran still currently takes. As such, the Board finds the Veteran currently has migraine headaches. However, a currently diagnosed disability alone is not sufficient grounds for service connection. Rather, the disability must be caused or aggravated by service. This connection can be established by either medical opinion of record, or by credible lay evidence that establishes continuity of symptomatology. The private treatment records in the claims file do not provide any opinion regarding the date of onset or the etiology of the Veteran's currently diagnosed migraine headaches, and they do not in any way suggest that the Veteran's migraine headaches either began during, were caused by, or were aggravated during her service. As such, the Board will examine whether the evidence establishes continuity of symptomatology. On the Veteran's entrance report of medical history in July 1989 the examining doctor indicated that the Veteran experienced headaches which were relieved by taking two aspirin. While this notation by the examining doctor indicates that the Veteran was already experiencing some headaches before she entered service, it does not suggest the Veteran was already experiencing "migraine" headaches. Upon entrance the Veteran was able to treat any headache she developed with over the counter aspirin, which does not suggest the Veteran required migraine medication at that time. Furthermore, in her March 2010 notice of disagreement the Veteran clarified that although she experienced headaches before her military service, she had not yet experienced migraines. As such, the Board finds that the Veteran did not experience migraines before service and the presumption of soundness attaches. 38 U.S.C.A. § 1111. Service treatment records were reviewed and do not reveal the Veteran made any complaints of, or received any treatment for, headaches during service. The Veteran did, however, receive extensive medical treatment in service, including treatment for an injury to her left ankle. It is reasonable to assume that while the Veteran was already seeking medical treatment in service, she would have also sought treatment for any headaches and/or migraines she may have experienced. The treatment records are detailed and complete, providing some evidence against this claim. In her substantive appeal in October 2010, the Veteran asserted that she doesn't know why her service treatment records don't include any complaint of headaches. She alleges that when her migraines developed in service she would report to the medical unit and they gave her Motrin. Despite the Veteran's assertions, this treatment for headaches is not reflected in the service treatment records. Furthermore, no headaches were noted when the Veteran was discharged for a left ankle disability. In August 1993 she was provided a physical examination in connection with her medical board report which noted that Veteran was in normal condition except for her left ankle. The Veteran herself made no reference to this problem. As such, the service treatment records do not establish that the Veteran suffered from migraines or an aggravation of her pre-existing headache condition during service. Post-service treatment records were also reviewed, but do not reflect that the Veteran received any treatment for headaches before 2006. In August the Veteran reported constant headaches to her private physician, stating that some days were worse than others. The Veteran reported she tried to treat these headaches with over-the-counter medication, but they did not help. Her physician indicated that the headaches may be due to tension, or may be migraines. In October 2006 she returned to her private physician who included a diagnosis of migraines on a list of "new problems." Therefore, the claims file does not establish that the Veteran sought any treatment for her migraines until August 2006, and that she did not receive a diagnosis until October of that year. As such, the post-service medical records do not establish the Veteran sought treatment for her currently diagnosed migraine headaches until twelve years after she separated from service, indicating a problem that began years after service, providing evidence against this claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). While the absence of treatment alone is not dispositive, the Board does find the lack of any post-service medical treatment for migraine headaches for over a decade to be probative in this case, for the reasons cited above. In her March 2010 notice of disagreement the Veteran asserted that she was 'always' in medical treatment following her separation from service because her headaches were so bad. However, the Veteran has not submitted evidence of any treatment received during this period, nor has she indicated where any such treatment records could be located. Without more information the Veteran's mere statement that she "always" received treatment following service is not sufficient to establish she sought treatment for her migraine headaches before 2006. Furthermore, the Veteran did not file her claim for service connection for another three years after she received a diagnosis of migraine headaches in October 2006. The Board finds this delay in applying for benefits (when she clearly understands how to apply for benefits) is probative evidence suggesting the Veteran's symptoms have not been continuous since service. In her March 2010 notice of disagreement the Veteran asserts that she waited several years to file a claim for benefits because she was "not aware of my benefits." However, despite the Veteran's assertions, this is not a case in which the Veteran was unaware of the VA. Rather she filed her initial claim within months after separating from service. In her initial claim, the Veteran sought service connection for several disabilities, including injuries to both feet, her left ankle, and her lower back. However, the Veteran did not mention any headaches or migraine condition at that time. The filing for service connection for other complaints related to service establishes that the Veteran was aware of the VA and the process for filing disability claims for service connection. However, the Veteran did not avail herself of this process alleging headaches until September 2009, fifteen years after she separated from service. The fact that the Veteran delayed well over a decade before she sought compensation for her migraine headaches strongly suggests that the Veteran has not experienced migraines continuously since her military service, providing factual evidence against this claim. The Board is aware that as a lay person, the Veteran is considered to be competent to report what comes to her through her senses, such as headaches. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion, such as a diagnosing migraine headaches or determining their etiology. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board finds the Veteran's lay statements taken alone are insufficient to establish she began experiencing migraine headaches, or experienced an increase in her chronic headache condition, during service which has continued to the present day. In August 2011 the Veteran's daughter submitted a written statement asserting that for her whole life she remembers her mother suffering from both mild and severe headaches. However, the daughter's general statements that her mother suffered from headaches since she was a child are not specific enough as to the onset or severity of the Veteran's migraine headaches. Furthermore, like her mother, the Veteran's daughter is a lay person who lacks the medical training to provide a diagnosis or etiology opinion of the Veteran's migraine headaches. Jandreau, 492 F. 3d at 1376. Based on all of the foregoing the Board finds the Veteran has not established that her currently diagnosed migraine headaches were caused or aggravated by her military service. Service treatment records do not reveal the Veteran received any treatment for headaches or migraines during service. Post-service treatment records do not establish that the Veteran made any complaint of migraines or increased headaches for twelve years following service. Finally, the Veteran did not file a claim seeking service connection for this disability for fifteen years following separation, despite her evident familiarly with the VA disability benefits process. As such, the Veteran's claim for service connection for migraine headaches is denied. Right Knee Disability The Veteran is also seeking a claim for service connection for a right knee disability. In an October 2009 written statement the Veteran asserted that during her military service a twenty pound weight fell four docks and landed on her right knee, and she continues to have pain from this incident. The Veteran alleged she went to the medical unit and received treatment for her injury to her right knee. Service treatment records were reviewed but do not show any complaints about any right knee injury during service. In fact, there is no indication the Veteran made any complaint of pain in her right knee while in service. As such, the service treatment records do not establish the Veteran developed a right knee disability while in service. Furthermore, the Veteran has not submitted any post-service treatment records which indicate she has received any treatment for, or made any complaint of, pain in her right knee. In fact, in her October 2009 written statement the Veteran did not indicate that she had actually received any knee treatment, indicating only that she has "dealt with it." The only suggestion in the record that the Veteran currently has a right knee disability are from her own statements asserting that she has ongoing pain in her right knee and occasionally wears a knee brace. As discussed above, although the Veteran is competent to report symptoms which come to her through her senses, such as pain in her knee, she lacks the expertise to provide a complex medical opinion such as diagnosing a right knee disability. Jandreau, 492 F. 3d at 1376. As such, the evidence of record does not establish that the Veteran has a current right knee disability, and, at best, only establishes she has pain in her right knee. The VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Accordingly, service connection cannot be granted for symptoms of pain alone. Therefore, the Veteran's claim for service connection for an alleged right knee disability is denied. Even if the Board assumes the Veteran has such a disability, the service and post-service evidence of records clearly providers highly probative evidence against this claim, clearly indicating a problem that began many years after service. Again, as noted in the first claim, the Veteran's own prior claims to VA support a finding that she has not had such a problem since service. Even if the Board concedes the fact, as the Veteran has indicated, that her ship had "terrible" records, it is her own actions over time that provide factual evidence against her claims, making it less likely than not (under 50% chance) that these problems are related to service. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2009 which informed the Veteran of all the elements required by the Pelegrini II court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records have been obtained, as have private treatment records, and the Veteran has not alleged that she received any VA treatment post-service. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined. The Board acknowledges that the Veteran was not provided with a VA examination, but, as will be discussed below, the Board finds such an examination was not required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed disabilities are related to her military service are the generalized lay statements of the Veteran, which are unsupported by any medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted, for the reasons cited above. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for migraine headaches is denied. The Veteran's claim for service connection for a right knee condition is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs