Citation Nr: 1307898 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-08 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to May 1974, with additional service with the United States Marine Corps Reserves and the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran appeared and provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This matter was previously remanded by the Board in September 2012 for further development. The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT A headache disability was not present at the time of the Veteran's discharge from active service, and no current headache disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a headache 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 FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify After reviewing the claims folders, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought in an April 2008 letter. Moreover, in the April 2008 letter, the Veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that this letter was sent to the appellant prior to the June 2008 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, the notice requirements apply to all five elements of a service connection claim: 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 (2006). In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the August 2008 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and post service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA examinations in October 2009 and October 2012. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time II. Legal Criteria and Analysis Applicable law provides that 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; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases (including organic diseases of the nervous system - to include migraine headaches) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. The Veteran contends that he is entitled to service connection for his migraine headaches, as such disability first became manifest in service, and has continued since. A review of the Veteran's STRs shows that on August 1973 entrance examination, the Veteran stated that he was in good health and he specifically denied any history of frequent and severe headaches. A May 1974 STR shows that the Veteran was seen for a complaint of stomach pain and a headache that had been ongoing for three days. He reported that the headache was located in the front of his head and that it came and went. He also reported that he had been treated for a similar headache while he was in Basic Training and had been prescribed Aspirin. The Veteran was diagnosed with an upset stomach with recurrent headache and prescribed Maalox and Tylenol. There is no indication that he sought follow-up treatment. A review of the Veteran's May 1974 examination releasing him from active duty, reveals no indication that he complained of any recurrent headache symptoms. On clinical evaluation, the Veteran's neurological system was found to be normal. On June 1976 Marine Corps Reserves triennial examination, the Veteran specifically denied any history of frequent and severe headaches and reported that he was in good health. On clinical evaluation his neurological system was found to be normal. On August 1979 Marine Corps Reserves triennial examination, the Veteran specifically denied any history of frequent and severe headaches and, again, reported that he was in good health. On February 1981 Army National Guard entrance examination, the Veteran denied any history of frequent and severe headaches. On clinical evaluation his neurological system was found to be normal and he was found to be qualified for enlistment into the Army National Guard. On January 1982 periodic medical examination, the Veteran denied any history of frequent and severe headaches and on clinical evaluation his neurological system was found to be normal. Post service treatment records show that in July 1981 the Veteran was seen at the Lynchburg General Marshall Hospital emergency room, in Lynchburg, Virginia with complaints of a right sided headache radiating into the back of his neck that had been present off and on for a month. He was given a diagnosis of a headache due to tension. Treatment records show that the Veteran visited the Lynchburg General ER again in July 1984 with complaints of a daily right sided headache that had been ongoing for two weeks. He reported that the headache lasted one to two hours and that it would completely resolve between episodes. He reported that he had these same headache symptoms approximately two years earlier, but it was a single episode at that time. The Veteran was given a diagnosis of cluster headaches. February 1993 treatment records from Lynchburg General Hospital show that the Veteran visited the Lynchburg General ER with complaints of a migraine headache. Prior to receiving treatment the Veteran reported to the ER registration station that his headache had resolved and after signing an "Against Medical Advice" document, the Veteran left the ER without receiving treatment for his headache. August 1995 treatment records from the Lynchburg Hospital ER show that the Veteran was again seen for complaints of migraine headaches. He reported that he had been having right sided migraine headaches for approximately three weeks. The Veteran was given a diagnosis of migraines. The Veteran returned to the ER two days later for follow up treatment and to obtain a computed tomography scan (CT) of his head, which was normal. January 1998 Lynchburg Hospital ER records show that the Veteran was seen for complaints of migraines. He reported that he had a history of migraine headaches starting in his twenties that were predominately right sided and involved some blurring of the vision in his right eye. He reported he had been migraine free for the last three years, up until the last several months. He reported that he noticed that eating pork was a trigger for his migraines and that his migraines responded well to Demerol and Phenergan. February 1998 Lynchburg Hospital ER records show that the Veteran was seen for complaints of a migraine headache that was unresponsive to his prescription medication. June 2008 private treatment records from Blue Ridge Primary Care Urgent Care facility show that the Veteran complained of a headache, and reported a history of migraines. He reported that the headache had been ongoing for two weeks, that it was intermittent, but that it had resolved on its own. He reported that prescription Imitrex nasal spray helps with the headaches, but that it is expensive. The Veteran was given a diagnosis of cluster headaches and prescribed Imitrex tablets and Fioricet June 2008 private treatment records from Physicians Treatment Center show that the Veteran complained of a migraines that had been ongoing for 3 week. He reported that he had taken Imitrex. The Veteran was diagnosed with cluster headaches and the treating physician renewed his prescription for Imitrex and also prescribed Ultram. In a June 2009 statement, the Veteran alleged that his current headache disability began while he was in Basic Training in 1974. At his January 2012 Travel Board hearing the Veteran testified that after participating in a gas chamber exercise during Basic Training, he got a headache for which he was treated with three days of bed rest. He further testified that after being transferred to Camp Lejeune he continued to get headaches for which he sought treatment and was given medication. He testified that following his separation from active service he sought treatment for his headaches from a chiropractor and was told he had cluster migraine headaches The Veteran was afforded a VA examination in October 2009. At that time, he reported that he began having headaches while at Basic Training at Paris Island, South Carolina. He reported that these headaches would last 2-3 days and that they would cause nausea and vomiting. He reported that he was treated with pain and nausea medication for those headaches. He reported that he continued to get treatment for his headaches after being transferred to Camp Lejeune and during his time in the Reserves until 1982. He reported that following his separation from the Reserves, his headaches got worse and he was eventually given a diagnosis of cluster migraines by a private doctor. He reported that his headaches at the time of the examination would last for 1 to 2 months at a time and would occur 4 to 5 times a day. He stated that the headaches did not cause any nausea or vomiting anymore and that he took over the counter and prescription pain medication with poor response. After examination of the Veteran and review of the claims file, the examiner gave the Veteran a diagnosis of migraine headaches. The examiner noted that the Veteran's STRs reflected that he had sought treatment one time in May 1974 for an episode of stomach ache and headache, and that the remainder of his STRs (including various military medical examinations) did not report any problems with headaches. The examiner opined that the Veteran's headache disability was not caused by or a result of his active service, to include the incident of headache documented in his STRs, as there was only the one incident documented in May 1974, and there was no further documented treatment for headaches until 1993. [The Board notes that the July 1981 and July 1984 private treatment records were not associated with the claims file at the time of the October 2009 VA examination.] The Veteran was afforded a new VA examination in October 2012. At that time the Veteran reported that he had been experiencing headaches since he was on active service in 1974 at Camp Lejeune. He reported that he sought treatment in service for his headaches and was given some medication at that time which was helpful to resolve the symptoms. The Veteran reported that he continued to seek treatment for his headaches after separating from active service, specifically he stated that he sought chiropractic treatment for his headaches and that he was told he had cluster migraine headaches. [The Board notes that there are no chiropractic treatment notes associated with the claims file.] After a thorough review of the claims file and examination of the Veteran, the examiner opined that the Veteran's headache disability was less likely than not related to his active service, to include the May 1974 treatment for a headache therein. The examiner explained that there were no findings until 1993 of a chronic, recurring headache disability in the Veteran's medical records, which was almost 20 years following the Veteran's separation from active service. Additionally, the examiner noted that there were no diagnostic or physical examination findings showing continuity of care between an in-service event or injury and the Veteran's current headache disability. The examiner acknowledged that the Veteran was treated once during active service for a headache (May 1974) in conjunction with gastrointestinal distress; however, it was significant that the Veteran denied having a headache condition on his May 1974 release from active duty examination. Therefore, the examiner found that the Veteran's current headache disability was not caused by or related to his active service, to include the May 1974 headache complaint therein. It is not in dispute that the Veteran now has a headache disability, as such is shown by the competent medical evidence of record. The Board also acknowledges that the Veteran was treated on one occasion while on active service for stomach pain and a headache. However, what the Veteran must still show to establish service connection for a headache disability is that his current disability is related to his active service, to include the episode of treatment for such noted in his STRs. A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. §§ 3.303(b), 3.307(b), 3.309(a); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). To the extent that the Veteran seeks to establish service connection for his headache disability by demonstrating continuity of symptoms by his accounts in his June 2009 statement and at his January 2012 Travel Board hearing, as well as the statements made at his October 2009 and October 2012 VA examinations, the Board finds that those accounts are not credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). His accounts of continuity of symptomatology are self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). Here, the Veteran alleges that the headache he experienced while on active service in May 1974 was productive of the same symptomatology of the headaches caused by his current headache disability, and that he has continued to experience these headache symptoms since his separation from active service. The Veteran separated from active service in May 1974, and separated from the Army National Guard in 1983 (by his reports), yet the Veteran did not file his claim for service connection for a headache disability until August 2008, nearly 25 years after service. His credibility in this matter is further made suspect by the contemporaneous reports of his medical condition during his periods of Reserve service. During his time in the Marine Corps Reserves and the Army National Guard, the Veteran consistently denied any history, or present symptoms of, frequent or severe headaches. Between May 1974 and January 1982, the Veteran had five military medical examinations and at each time he denied any history of frequent or severe headaches. The Board notes that prior to the last military medical examination of record (January 1982) the Veteran was treated at the Lynchburg General Hospital ER in July 1981 for complaints of a right sided headache; however, the Veteran still denied experiencing frequent or severe headaches on the January 1982 medical examination. This leads the Board to the conclusion, that although the Veteran was treated for a headache in July 1981, this was an acute and transitory occurrence and resolved after the Veteran sought treatment. This contemporaneous medical evidence serves to contradict the Veteran's statements of continuity of symptomatology and impacts negatively on the probative value of his reports. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board is not bound to accept uncorroborated accounts of appellant's medical history but must assess the credibility and weight of the evidence provided by the appellant before rejecting it). The Board has weighed the Veteran's statements as to continuity of symptoms against the absence of corroborating medical evidence and finds his recollections as to symptoms experienced in the distant past, mainly in connection with a claim for benefits, to not be credible. What remains for consideration is whether the Veteran's headache disability may otherwise be related to his service. The Board finds the preponderance of the evidence is against there being a nexus between the Veteran's headache disability and his service. The Board attaches significant probative value to the October 2012 VA examination. The examiner reviewed the record and concluded that the Veteran's headache disability was less likely than not related to his active service, to include the episode of headache and stomach pain complained of therein. The examiner explained that although the Veteran was treated once for a headache and stomach pain while on active service, his May 1974 separation examination documents his denial of a history of severe or frequent headaches, and the Veteran continued to deny any such history on several military medical examinations during his time in the Marine Corps Reserves and Army National Guard. The examiner also noted that the Veteran was not found to have a chronic migraine condition until almost 1993, which was nearly 20 years after his separation from active service. The examiner is competent to offer the opinion and it is probative evidence in the matter. Because there is no competent (medical, as this is a medical question) evidence to the contrary, it is persuasive. The Board has also considered the Veteran's statements asserting a nexus between his current headache disability and his active duty service. He is not competent to provide a nexus opinion in the absence of credible evidence of continuity of complaints as he is a layperson without the specialized training necessary to address a complex question with respect migraine headaches, and does not cite to any supporting medical texts or treatises. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a headache disability. Hence, the benefit of the doubt doctrine does not apply, the claim must be denied. ORDER Service connection for a headache disability is denied. ____________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs