Citation Nr: 1306273	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  04-28 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for headaches to include as due to an undiagnosed illness or a medically unexplained multisymptom illness or as secondary to a service-connected disability.


REPRESENTATION

Veteran represented by:  Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

The Veteran and Ms. S.W.


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1990 to March 1995.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that in relevant part denied the Veteran's request to reopen a previously denied claim of entitlement to service connection for headaches.

In June 2004 the Veteran appeared at a hearing before a Decision Review Officer. In May 2007 he appeared before the undersigned Veterans Law Judge.  Transcripts of hearings are in the Veterans' file.

In a decision in August 2007 the Board denied the Veteran's application to reopen the claim.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued in Order in August 2008 that granted a Joint Motion of the Parties to vacate the Board's decision and to remand the case to the Board for further development.  The Board remanded the case to the RO in April 2010 for development in compliance with the Court's Order.

In January 2011 the Board issued a decision that reopened the claim and remanded the case to the Originating Agency for compliance with the Veterans Claims Assistance Act (VCAA).  Thereafter, the Board remanded the case once again to the Originating Agency in April 2012 for additional development of the merits.  As the requested development has been completed, no further action is required to ensure compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).





FINDINGS OF FACT

1.  The Veteran service in Southwest Asia during the Persian Gulf War.

2.  Headaches, tension or migraine, are known clinical diagnoses and are unrelated to service and not caused by or permanently made worse d by service-connected posttraumatic stress disorder.


CONCLUSION OF LAW

The criteria for service connection for headaches, tension and migraine, are not met.   38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310, 3.317 (2012).  

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  





Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided post-adjudication VCAA notice by letters in July 2005, in April 2010, and in April 2012. The notice included the type of evidence needed to substantiate a claim of service connection, including secondary service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service; or a service-connected disability caused or aggravated a nonservice-connected disability.  

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  
As the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in January 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).  

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  

The RO has obtained service treatment records, service personnel records, Social Security Administration (SSA) disability records, VA records and private medical records.  The Board previously reviewed the file and determined additional medical opinion was required to resolve the claim on appeal and remanded the case for VA medical examination, which was performed in June 2012.  The Board has reviewed the examination report and finds the RO substantially complied with the instructions articulated in the Board's remand.  See D'Aries v. Peake, 22 Vet. App. 97 (2008).

As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 (wartime service) and 1131 (peacetime service). 


Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and1131 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may be granted on a secondary basis for a disability that is proximately due to, or is aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet App. 439 (1995).  



To prevail on the issue of secondary service connection, the record must generally show evidence of a current disability; evidence of a service-connected disability; and, medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998). 

Because the Veteran served in the Southwest Asia Theater of operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317.  Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  

For a disability due to undiagnosed illness and medically unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)).  

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. at 8-9.  



Further, lay persons are competent to report objective signs of illness.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  38 C.F.R. § 3.317(a)(5); see Stankevich v. Nicholson, 19 Vet. App. 470 (2006).  

A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  

A "medically unexplained chronic multisymptom illness" contemplates a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities."  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

For purposes of 38 C.F.R. §  3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  


Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following:  (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).  

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 




If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).

Evidence

The service treatment record is silent as to any complaint of headaches.  A separation examination is not of record.

The Veteran was discharged from service in March 1995.

After service in February 1998 the Veteran was worked up Gulf War symptoms consisting of severe cognitive problems, balance problems, joint aches and emotional lability.  Headaches were not mentioned.  The impression was neurologically impaired Gulf War veteran.  And in an inpatient workup about one week later, there was no complaint or history of headaches.

VA records show that in May 1999 the Veteran complained of headaches.  The impression was tension headaches.  In December 1999, a VA psychiatrist described the Veteran as a poor historian with psychomotor retardation and memory difficulty.  In July 2000 the same VA psychiatrist stated that the Veteran was having a memory problem around the time his Gulf War duty.  In August 2000, the Veteran complained of headaches, which he associated with stress at his workplace. 




In June 2001, the Veteran submitted his initial claim of service connection for headaches, asserting his headaches were the result of serving in the Persian Gulf.

In March 2002 on VA examination, the Veteran stated that he developed headaches in service at the same time he was hospitalized for psychiatric symptoms.  The impression was headaches related to tension or stress.

In March 2003, in a statement, the Veteran stated that he experienced 3 to 4 headaches a week.

In July 2003 on VA examination, the Veteran complained of chronic persistent headaches.  A CT scan of the brain was normal.  The diagnosis was chronic tension headaches.

On VA mental health assessments for PTSD in July 2003 and in August 2003, there was no reference to headaches.

In June 2004 the Veteran testified that he could not remember when he began having headaches, but he remembered having sought treatment for headaches during service.  Later in his testimony he denied having sought treatment for headaches until after discharge from service, when he sought treatment from VA.  

VA records show that in October 2005 the Veteran denied current headaches.

On VA examination in November 2006, the VA examiner stated that the Veteran's symptoms of headaches, short term memory loss, and reduction in cognitive functioning since service may be related to unknown toxic chemical agents suffered by many Veterans in the Persian Gulf War.  

In March 2007, the Veteran stated his headaches were recurrent if he did not use a continuous positive airway pressure (CPAP) device.  





In May 2007, the Veteran testified that during service he experienced 2 to 3 headaches a day after he returned from the Persian Gulf.  Ms. SW testified that the Veteran experienced headaches twice a month.  

On VA examinations in February 2008, there was no reference to headaches.

On VA neurological examination in June 2012, the Veteran complained of recurring headaches since returning from the Persian Gulf in 1991, although he could not recall any details about the headaches.  The VA examiner noted that the Veteran had borderline intellectual functioning.  The Veteran stated the recurrent headaches were associated with phonophobia, photophobia, and sometimes with movement.  The VA examiner's impression was that the Veteran had described infrequent and relatively brief recurring headaches with symptoms suggestive of common migraine and described as arising in the context of stress and arguments generating anger.  The VA examiner that there was no evidence of record of an in-service event or injury that might reasonably have been the etiology of the headaches and no evidence of record that the headaches were related to military service.  The Veteran did state that his headaches began after his return from the Persian Gulf.  In the opinion of the VA examiner it was significantly less likely than not that the Veteran's migraine headaches could be related to or aggravated by military service.   

Analysis

On the basis of the service treatment records alone, excluding the Veteran's postservice statements and testimony, headaches were not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. 

As headaches were not affirmatively shown to be present during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology and an initial diagnosis after service, apply. 



Headaches are a condition, the Veteran as a lay person can identify.

Chronicity requires evidence that the disability was present in service and the same condition currently exists, such evidence must be medical, unless the disability is one capable of lay observation.  Continuity of symptomatology requires medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology.  An initial diagnosis after service requires that when all of the evidence, including that pertinent to service, shows that the disability was incurred in service.  

As the Veteran is competent to state and testify that he had headaches in service and since service.  When competent lay evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  

In determining credibility, VA may consider inconsistent statements and consistency with other evidence.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

The service treatment record is silent as to any complaint of headaches.  After service in February 1998 the Veteran was worked up Gulf War symptoms consisting of severe cognitive problems, balance problems, joint aches and emotional lability.  Headaches were not mentioned.  And in an inpatient workup about one week later, there was no complaint or history of headaches.  In December 1999, a VA psychiatrist described the Veteran as a poor historian with psychomotor retardation and memory difficulty.  The same VA psychiatrist stated that the Veteran was having a memory problem around the time his Gulf War duty.  In August 2000, the Veteran complained of headaches, which he associated with stress at his workplace, not with service.  




In contrast in June 2001, the Veteran submitted his initial claim of service connection for headaches, asserting his headaches were the result of serving in the Persian Gulf.  In June 2004 the Veteran testified that he could not remember when he began having headaches, but he remembered having sought treatment for headaches during service.  Later in his testimony he denied having sought treatment for headaches until after discharge from service, when he sought treatment from VA.  In March 2002 on VA examination, the Veteran stated that he developed headaches in service at the same time he was hospitalized for psychiatric symptoms.  In May 2007, the Veteran testified that during service he experienced 2 to 3 headaches a day after he returned from the Persian Gulf.  On VA examination in June 2012, the Veteran complained of recurring headaches since returning from the Persian Gulf in 1991, although he could not recall any details about the headaches. 

The Board finds that the Veteran's statements and testimony are internally inconsistent and inconsistent with other evidence of record.  Although the Veteran is competent to identify headaches, the Veteran's statements and testimony relating the onset of headaches in service lacks credibility and the assertions have no probative value, that is, it does not tend to prove chronicity or continuity of symptomatology.  

Service connection may still be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d).

Tension headaches was first shown in 1999 and migraine was first shown in 2012, which is evidence of current disability.

Service connection requires not only the existence of a disability, but also a link or causal connection between service and the claimed disability.  

The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 



And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

As the Veteran is competent to identify headaches, which are capable of lay observation, the Veteran is also competent to express an opinion on a simple medication and the Veteran's opinion has some probative value.  But in weighing the Veteran's lay opinion against the opinion of the VA examiner, a physician, the Board finds that the VA physician's opinion that it was significantly less likely than not that the migraine headaches could be related to or aggravated by military service, more probative and outweighs the Veteran's lay opinion. 

And no medical professional has diagnosed headaches before 1999 and no medical professional has diagnosed headaches related to service on the basis of the symptoms described by the Veteran.    

Although S.W. is competent to state that the Veteran has recurrent headaches, her testimony does not have any probative value as to the onset of headaches in service or secondary to PTSD or due to an undiagnosed illness. 

As the competent and credible medical evidence outweighs the lay evidence, the criteria for direct service connection under 38 C.F.R. § 3.303(d) are not met.

Secondary Service Connection

The Veteran is service-connected for PTSD.  While VA records show progression of the severity of PTSD in great detail, there is no evidence that PTSD caused or aggravated headaches. 





The Veteran asserts his headaches may be due to or aggravated by his service-connected disability, but he has offered no medical opinion to support his claim.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between headaches and his service-connected PTSD.  For this reason, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between headaches and service-connected PTSD.  

Since the Veteran's lay opinion is not competent evidence, his opinion is excluded, that is, not admissible as evidence and cannot be considered as competent evidence of nexus favorable to claim based on secondary service connection.  

As the record does not contain competent evidence, lay or medical, that links headaches to PTSD and in the absence of medical evidence suggesting such an association, but is too equivocal or lacking in specificity to support a decision on the merits, and in the absence of credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claim of secondary service connection under the duty to assist.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In sum, there is no competent evidence that service-connected PTSD caused or aggravated nonservice-connected headaches. 

Undiagnosed or Medically Unexplained Multisymptom Illness

Finally, the Veteran has asserted that his headaches are related to an undiagnosed illness or a medically unexplained multisymptom illness caused by his service in the Persian Gulf.

The Veteran served in the Persian Gulf from November 1990 to April 1991.  He is accordingly within the period for consideration under 38 C.F.R. § 3.317.



In November 2002 the Veteran requested consideration for a constellation of symptoms as due to undiagnosed illness including stomach condition, sleep disorder, warts on fingers, foot fungus, loss of memory, paranoia, and shaving condition.  In n March 2003 he added claims for headaches, bed-wetting, panic attacks and diarrhea, also as due to undiagnosed illness.  In January 2004 the RO granted service connection for several of these symptoms that were shown to be associated with diagnosed chronic disabilities (irritable bowel syndrome, tinea pedis, pseudofolliculitis barbae and sinusitis).  The same rating decision denied service connection for headaches as a diagnosed illness and unrelated to service in the Persian Gulf. 

Although headaches are one of the symptoms cited in 38 C.F.R. § 3.317 as being characteristic of an undiagnosed illness or a medically unexplained multisymptom illness.  The Veteran's headaches have been diagnosed as both tension headaches and migraine, which are known clinical diagnoses. 

Therefore, the criteria for service connection headaches under 38 C.F.R. § 3.317 (undiagnosed illness or medically unexplained multisymptom illness) are not met.

As the preponderance of the evidence is against the claim of service connection for headaches, the benefit-of-the-doubt standard of proof does not apply and service connection is not warranted.


ORDER

Service connection for headaches, tension or migraine, is denied.


____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs