Citation Nr: 1306809 Decision Date: 02/27/13 Archive Date: 04/10/13 DOCKET NO. 98-05 548 ) DATE FEB 27 2013 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a cervical spine disability with headaches. WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to June 1959. This matter comes before the Board of Veterans' Appeals (Board) from RO decisions of February 1998 and September 1999. In October 1999, the Veteran and his wife appeared at the RO and offered testimony in support of the Veteran's claims before the undersigned Veterans Law Judge. A transcript of that testimony has been associated with the Veteran's claims file and has been reviewed. In a decision dated in February 2002, the Board granted the Veteran secondary service connection for a left leg disorder and a low back disorder. The Board denied the Veteran's claim for an increased evaluation for service-connected residuals of a fracture of the left pelvis. The Board also denied his claim for secondary service connection for a cervical spine disorder with headaches as not well-grounded, which was the adjudicatory standard in effect at the time. The Veteran appealed. In December 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded this matter to the Board for readjudication consistent with the Court's order. The Board then remanded the two appeals in July 2007 and May 2009. In an August 2010 decision, the Board denied the appeal for an increased rating for residuals of the fracture to his left pelvis, and again remanded the appeal for a cervical spine disorder with headaches. Although the evidentiary development requested upon remand has not been fully accomplished, the Board finds that the evidence of record nevertheless supports the dispositions reached below, and that no prejudice accrues to the Veteran through this final decision at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). -2- FINDING OF FACT The Veteran experienced headaches during service and after service and continues to experience headaches at present. CONCLUSION OF LAW Service connection is warranted for headaches. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran fractured the left side of his pelvic bone during service, when he fell from a moving merry-go-round. Service connection has been granted for residuals of the pelvic fracture, a left leg disorder, and a low back disorder. He contends that his headaches and cervical spine problems are secondary to the fracture residuals. Specifically, he contends as follows: "When I walk my left hip lags behind and creates a nervous condition in my low back and extends up the left edge of my spine into the left lower portion of my head with a constant soreness behind my left ear, and pressure behind my left eye." Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record 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. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. -3- Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in a June 2006 letter, prior to the recent adjudications of the Veteran's claim. Given the positive disposition reached below, the Board finds that an exhaustive description of how the VA complied with its duties to assist the Veteran is unnecessary. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 1 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). -4- Analysis Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. 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." Shedden v. Principi, 381 F.3d 1163,1167 (Fed. Cir. 2004). According to the report of the Veteran's July 1954 enlistment examination, his head, face, neck, and scalp were normal upon clinical examination, as was his spine and neurologic system. He underwent a thorough clinical examination again in December 1954, prior to entering into airborne training. Again, his head, neck, spine, and neurologic system were normal upon clinical examination. On the medical history portion of this examination, he denied having frequent or severe headache, arthritis, rheumatism, and any bone or joint deformity. A March 1956 record reflects a complaint of a headache and sore throat. In May 1956, he fractured the left side of his pelvic bone, as set forth above. The report reflecting his initial medical evaluation after the accident shows that his neck was deemed to have been normal at that time. After nearly two months of recovery, he was pronounced ready to return to service, although he was given a profile restricting his activities somewhat. Treatment records in April 1958 and August 1958 show complaints of headaches. The report of his May 1959 separation examination shows his spine, head, and neck were deemed to have been normal at that time. On the medical history portion of this examination, however, he reported having -5- "frequent headaches." The examiner, however, characterized the headaches as "occasional," and noted that the headaches were asymptomatic at that time. Service connection for residuals of the pelvic fracture was granted in 1963. The report of the March 1963 VA examination conducted prior to this decision reflects that he did not complain of any headache or cervical spine problems. Upon examination, his spine and neurological system were deemed to have been normal. A 1980 statement from the Veteran's brother attests that as the Veteran's roommate after his discharge from service, he recalled the Veteran having headaches and sinus pain on a daily basis during that time. X-ray studies in the 1980s were interpreted as showing degenerative joint disease in his entire spine. Subsequent testing also showed osteopenia. Various subsequent medical records contained in the Veteran's claims file reflect complaints of headaches, and complaints of neck pain. Additionally, multiple lay statements submitted in the 2000's, from the Veteran's wife, his brother, his neighbors, etc., attest to their knowledge and observation of the Veteran's neck and head pain. During the October 1999 hearing on appeal, the Veteran testified that he had returned to duty after the accident he had "had back strains and weakness in my left leg, numbness in the back of my head." He also testified that he had not injured his neck at the time of the in-service accident. The veteran's hearing testimony was sincere and is deemed helpful to the Board and credible insofar as it comports with the medical evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Upon careful review of the evidence of record, the Board concludes that service connection for headaches is warranted on a direct basis upon application of the benefit of the doubt standard. -6- Applying the test set forth in Shedden, there is no dispute that the Veteran has a current disability involving headaches. His assertion to this effect serves to establish his headaches, because no special medical expertise is required to identify the presence of headaches. Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). Because the Veteran experienced headaches and complained of them during service, and these complaints were recorded in his service treatment records, the in-service incurrence element is satisfied as to the Veteran's headaches. The third element required for a successful claim of service connection is that of a nexus between service and the current disability. The Board holds that the record shows a continuity of headache symptomatology, in that the evidence of record dated after his discharge from service until the present reflects that he experienced on-going headaches. In particular, the evidence submitted before his claim for service connection (which was filed in 1996) is probative of this point, as no claim for monetary benefits was at issue prior to 1996. Continuity of symptomatology is thus adequately demonstrated in the record. As these three elements are met, the Board holds that service connection for headaches is warranted. Given the amorphous nature of headaches in general, however, the Board holds that the evidence falls into equipoise, thus supporting a legally-based benefit of the doubt grant. Viewed in this way, it is important to clarify that the Veteran's headache pain and neck pain related to his headaches is the subject of this grant of service connection. Because the Veteran also has separately-diagnosed degenerative disease and osteopenia in his cervical spine, the Board explicitly excludes these aspects of the Veteran's neck pain from the grant of service connection. Crafting the grant in this way honors the Veteran's initial claim in 1996, in which he associated his neck pain and headache pain together as resulting from a "nervous condition." Nowhere does he assert that arthritis or other bony pathology is related to his service or to a service-connected disability. Indeed, no connection to service is apparent, as the evidence contains no indication of any inservice event affecting his cervical spine, his bony pathology was initially manifest many years after service, and no other relationship is shown in the evidence. In summary, the evidence relating to the Veteran's headaches with cervical spine involvement falls into equipoise, and the benefit sought is therefore warranted. -7- Service connection for headaches is thus granted. This decision thus resolves a complicated case with a lengthy procedural history, with a grant of the benefit sought. ORDER Service connection for headaches is granted, subject to the laws and regulations governing the award of monetary benefits. Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals -8-