Citation Nr: 1306491 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-36 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Ted Sumner, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and Friend ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1975 and from February 1976 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Regional Office (RO) in Portland, Oregon. In June 2011, the Veteran testified at a hearing before the undersigned. A transcript of this hearing was prepared and associated with the claims file. This issue was remanded by a December 2011 Board decision, along with the issue of entitlement to service connection for a psychiatric disorder. The Board notes that the Veteran was granted service connection for a psychiatric disorder by an October 2012 RO decision; therefore, the remaining issue on appeal is that of service connection for migraine headaches. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's currently diagnosed headache disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A headache disability was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.09 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in October 2004 and October 2008, as well as the prior Board Remand, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization or attorney and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided VA examinations in March 2005 and April 2012. These exams, particular the April 2012 examination, were thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131(West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as certain neurological disorders, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2012). The Board notes however, that in this case, there is no medical evidence of record showing a diagnosis of any neurological disorder within one year of service, therefore, service connection on a presumptive basis would not be warranted. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b) . Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Taking into account all relevant evidence, the Board finds that service connection is not warranted for a headache disability. In this regard, the Board finds that the preponderance of the evidence of record indicates that the Veteran's currently diagnosed headache disability is not related to service. Reviewing first the Veteran's service treatment records, in April 1977, the Veteran reported cold symptoms including a cough, runny nose, and headaches, and was diagnosed with a mild upper respiratory infection. An August 1979 service treatment record noted that the Veteran reported headaches, and that he was in an automobile accident 7 days prior. He specifically reported being unable to sleep due to constant pain. He was noted to have not lost consciousness in the accident. Upon examination, no specific defects were noted. The Veteran was prescribed some pain reliever and returned to duty. It appears that on a medical history taken in conjunction with a dental examination in December 1979, just a few months after his car accident, that the Veteran reported problems with severe or frequent headaches. In March 1981 in service, he reported a headache along with a runny nose and coughing, and was diagnosed with a "head cold". March 1982 reports of medical history and medical examination at the time of the Veteran's separation however show no complaints of, or treatment for headaches. On his report of medical history, he checked "no" as to the question of whether he had frequent or severe headaches. There are no medical records dated from the Veteran's separation until 1999 of record, nor has the Veteran identified any available relevant records. VA treatment records from 1999 to 2004 show no complaints of, or treatment for, headaches. A July 2004 VA general medical note also indicates that the Veteran denied having any headaches or migraines. The Veteran received a VA examination regarding headaches in March 2005. At that time, the Veteran reported starting to have headaches after a 1979 motor vehicle accident. The headaches are a throbbing frontally located pain which gradually builds. He has no nausea or light sensitivity with these but does have noise sensitivity. He experiences these headaches a couple of times a month and they last up to a half hour. He also had blurry vision he associates with these headaches. Physical examination was unremarkable. The examiner diagnosed the Veteran with common migraines, which were not prostrating. The examiner at that time indicated that he did not have any records of the Veteran's head injury in 1979, however, based on the head injury as the Veteran described it, he opined that it was less likely as not that the Veteran's headaches were a result of that head injury. A February 2009 report of outpatient treatment recommended smoking cessation, more regular walking, adequate daily hydration, and ibuprofen for a diagnosis of tension headaches. In May 2009, a VA outpatient treatment record noted that the Veteran had complaints consistent with a primary headache syndrome, specifically cluster headaches, but his neurologic examination was normal. An MRI of the Veteran's head was ordered, which was normal. In a June 2009 report of VA outpatient treatment, the Veteran reported frontal headaches 2 to 3 times a day. They last for about an hour, and have some photosensitivity. The Veteran was diagnosed with headaches. A July 2010 report of VA outpatient treatment noted the Veteran reported a chronic headache which felt like constant frontal pressure, and occasionally occurred with blurry vision. The Veteran had a comprehensive examination for his headaches in May 2012. At that time, he reported a constant pain in the front of his head that waxes and wanes since he hit a windshield with his forehead in a motor vehicle accident in 1979. He also associated with the headache nausea, sensitivity to light, and changes in vision, however, he did not describe prostrating attacks. The examiner felt that this condition would impact the Veteran's ability to work, as it did cause sleep disturbance, and required him to lie down at times. The examiner indicated that the Veteran had been diagnosed with cluster headaches, however, he further indicated that he thought it was less likely than not that the Veteran's headaches were related to service. In this regard, the examiner noted that the Veteran had been diagnosed with cluster headaches in 2009. He noted that the Veteran had reported headaches shortly after the motor vehicle accident and on several other occasions in service, but that in March 1982, he stated he was in good health and did not report any problems with frequent headaches. Records show that the Veteran is currently in receipt of Social Security administration benefits for a primary diagnosis of curvature of the spine, with a secondary diagnosis of a substance dependence disorder. Thus, reviewing the entirety of the medical evidence of record, the Board finds no question that the Veteran was in a motor vehicle accident in 1979, in which he hit his head which caused headaches at that time. However, from the Veteran's separation in service in March 1982, until 2005, 23 years, there is no medical evidence of any headache diagnosis, and records from the VA from 1999 until 2004 show no evidence of any headache disability. In fact, during an examination in July 2004, it was noted that he had sustained a head injury in 1979, but he specifically denied a history of migraines. Finally, the only medical etiology evidence of record, in the Veteran's March 2005 and May 2012 VA examination reports, indicates that it is less likely than not that the Veteran's current headache disability is related to service. The Board recognizes the Veteran's testimony in his June 2011 hearing, in which he stated that he had migraines since his in service automobile accident in 1979. The Board does not doubt the Veteran's sincerity in offering this statement, however, as noted above, the medical evidence of record does not show any diagnosis of a chronic headache disability in service or for over 20 years after service, only an acute diagnosis related to his trauma, and multiple VA examinations since service showed no evidence of, or report of, chronic headaches. In this regard, the Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints regarding headaches for two decades after service. Rather, the Board is relying also on the fact that the Veteran specifically denied a history of headaches at separation, and that he also denied such a history during the course of examination in July 2004. Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains instances in which the Veteran specifically denied having any relevant symptoms. Therefore, the Board finds that the facts of this case are distinguishable from Buchanan. Consequently, although the service treatment records do reflect several instances of complaints in service, the Board concludes that the current assertions by the Veteran as to experiencing a continuity of symptomatology since service not credible. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board finds that the Veteran, as a lay person, is not otherwise competent to link his current headaches to either his in-service injury or the symptoms he experienced in service. Therefore, the Board finds the conclusions of the health care providers discussed above to be far more probative on the issue of whether the claimed headache disorder is related to service than the Veteran's own assertions.. In summary, considering the medical evidence of record, and the Veteran's testimony, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a headache disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49 ORDER Entitlement to service connection for migraine headaches is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs