Citation Nr: 1308114 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-27 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for migraine headaches, to include as being secondary to the appellant's service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active duty from November 1967 to September 1970, to include service in the Republic of Vietnam. This matter initially came to the Board of Veterans' Appeals, hereinafter the Board, on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant provided testimony during a hearing at the RO before the undersigned Veterans Law Judge (VLJ) in August 2011. A transcript of that hearing was prepared and has been included in the claims folder for review. It is noted that in Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned VLJ elicited testimony designed to bring out the facts necessary to substantiate the appeal. Additionally, this VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the appellant nor his representative has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012) or identified any prejudice in the conduct of the Board hearing. Following the appellant's hearing and after further reviewing the claim, the Board remanded the issue on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC. The purpose of the remand was to obtain additional medical evidence pertinent to the appellant's claim for benefits. The remand occurred in October 2011 and the claim has since been returned to the Board for review. Upon reviewing the development that has occurred since October 2011, the Board finds there has been substantial compliance with its remand instructions with respect to the issue on appeal. The Board notes that the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the appellant underwent additional medical examinations and those examinations have been included in the claims folder for review. Also, the AMC has obtained the appellant's medical records that were not previously of record. The AMC subsequently issued a supplemental statement of the case (SSOC) after reviewing the results of the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the October 2011 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the veteran the right to compliance with the remand orders). FINDINGS OF FACT 1. The appellant is service-connected for posttraumatic stress disorder. He also has been diagnosed with migraine headaches. 2. A VA clinical psychologist has concluded that the appellant's migraine headaches are aggravated by his service-connected psychiatric disorder. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, his migraine headaches are secondary to or have been aggravated by his service-connected posttraumatic stress disorder. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012); 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439, 446 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has come before the VA claiming that he now suffers from headaches and that the headaches began while he was on active duty. Alternatively, it has been insinuated that there is a relationship between his service-connected PTSD and the headaches, i.e., that the psychiatric disorder affects the headaches in some manner. The RO has denied his claim for benefits and he has appealed to the Board for review. The Board has thoroughly reviewed all the evidence in the appellant'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, the evidence submitted by the appellant or on his behalf. 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 claims. 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 appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant proceeding with this issue given the favorable nature of the Board's positive decision with regard to the issue of service connection for migraine headaches. II. Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1994), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating: "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology." Barr v. Nicholson, 21 vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). The Court has held that when aggravation of a service member's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Because the appellant submitted his claim prior to October 10, 2006 (the effective date of the amended provisions), the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. [The record reflects that the RO received the appellant's claim on July 27, 2006, which was approximately two and one half months prior to the change.] When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). III. Discussion At the outset, the Board notes that the appellant's available service medical treatment records are negative for treatment involving migraine headaches. It was not until after 1980, which was ten years after his release from active duty, that the appellant began complaining about headaches. In October 2005, the RO received a claim from the appellant seeking service connection for PTSD. Said claim was granted via a rating action issued in February 2006. Since that time, the appellant has averred that if his migraine headaches were not caused by or related to service, alternatively they have been secondary to or aggravated by his service-connected PTSD. A review of the VA medical records since 2006 to the present does show that the appellant has complained of and sought treatment for migraine headaches. However, these same VA medical treatment records are negative for any etiological opinion concerning the headaches. In October 2009, the appellant underwent a VA Neurological Examination. The examiner indicated that prior to the examination, he did have access to the appellant's service and post-service medical records. Upon completion of the examination, the examiner provided the following hypothesis: IMPRESSION: Migraine headaches at least as likely as not service connected. COMMENT: His C-files do not reveal any evidence of headaches. His history is compelling that the headaches that he had in the service are the same headaches that he has had in civilian life. It would be this examiner's opinion that his headaches commenced while on active duty in Vietnam and was secondary to the stress [of Vietnam]. An addendum was proffered by the same examiner in November 2009. Upon further reflection, the examiner concluded: . . . In reviewing this record, the diagnosis was based on subjective history with no clear evidence in his C-file as it is re-reviewed of treatment for headaches while in service. Therefore, it is the opinion that although subjectively the veteran had onset of headaches while in the service, it is at least as likely as not his migraine headaches commenced in the 1980s after a fall and loss of consciousness. Less than two years later, the appellant provided testimony before the Board. During that hearing, the appellant described how long he had been experiencing the headaches and reported that when he became stressed or that when the manifestations and symptoms of his PTSD became more severe, he suffered from migraine headaches. It was further intimated that when his stress level was reduced, the headaches became less frequent or severe. Shortly after the appellant provided testimony before the Board, he underwent another VA Headache Examination. This occurred in November 2011 and was performed by a nurse practitioner. Upon completion of her examination of the appellant, she provided a negative etiological opinion concerning the appellant's migraine headaches and his service or a service-connected disability. The Board would note that in her rationale concerning the etiology of the appellant's headaches, the nurse practitioner focuses upon sinus headaches. Also, she did not comment on whether the appellant's PTSD aggravated his headaches. Because of this lack of information, the claim was sent to a VA clinic psychologist for an addendum opinion, which was issued in July 2012. Based upon a review of the appellant's claims file, the psychologist wrote the following: . . . It is at least as likely as not that the veteran's headaches have been aggravated by any service-connected disability, to include PTSD. Rationale: "A 2009 study from the Veterans Affairs Center for Excellence for Stress and Mental Health in La Jolla, Calif., found that both migraine and tension-type headaches were significantly associated with PTSD and combat-related injury. Veterans with PTSD were four times more likely to report current headache than veterans without PTSD symptoms, says study lead Niloofar Afari, PhD, director of clinical affairs at the center. Veterans with both migraine and tension-type headache had significantly higher rates of PTSD than those who had migraine or tension-type headaches alone." (as cited in the Head Wise magazine June 2011 article by Lesley Reed). Furthermore, Dr. Ready, Director of the Headache Clinic at Scott and White Healthcare in Temple, Texas, is noted to have stated that: "It's unclear whether headaches trigger anxiety in soldiers or vice versa . . . but what is clear is that the two conditions make each other worse." (as published in Head Wise magazine, volume 1, issue 3, 2011 by Katherine Osos) . . . . While these statements suggest a relationship between PTSD and headaches, they do not specify the direction of the relationship (e.g. does PTSD cause headaches or do headaches cause PTSD), thereby providing support for Opinion 1 above. However, the above statements do support an assertion that migraine headaches are correlated in some way with PTSD. It is still unclear whether PTSD causes migraine headaches, but there is support for the possibility that headaches can be aggravated by PTSD (and vice versa), which provides support for Opinion 2 above. It is outside of the competency area for this psychologist to discuss specifics about the severity of veteran's migraine headaches, so baseline severity data of the headaches compared to severity of headaches after aggravation by PTSD is unable to be delineated by this author. With regard to specific evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In this instance, the record contains an opinion by a VA nurse practitioner that found that the appellant's migraine headaches were not related to service. She did not, however, address whether the headaches were secondary to or aggravated by a service-connected disorder. Next, there are the VA examiner's opinions in 2009 that, in essence, are equivocal. The first opinion concluded that the appellant's headaches were related to service whereas the second opinion found that the headaches were not related to service. Notwithstanding this lack of clarity, that examiner also failed to address whether the headaches were secondary to or aggravated by a service-connected disorder. Finally, there is the third opinion that was proffered by a VA clinical psychologist in 2012. In that opinion, the psychologist concluded that the appellant's migraine headaches were not caused by or the result of his military service, but were instead aggravated by the appellant's service-connected psychiatric disorder. To bolster her hypothesis, the clinical psychologist provided studies, including one performed by the VA, that suggest that there is a "cause and effect" relationship between PTSD and migraine headaches. In this instance, the VA clinical psychologist had reviewed the claims folder and had examined the appellant. More importantly, the examiner was able to provide documentary substantiation to her assertions. Moreover, the examiner who wrote the opinion discussed the salient facts and gave a complete rationale for all conclusions presented. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Accordingly, the Board finds that the VA clinical psychologist's opinion is probative and may be used to assist in the granting of service connection. The psychologist has provided an opinion that the appellant's migraine headaches have been aggravated by his service-connected PTSD. This opinion is well-reasoned, detailed, and consistent with other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Additionally, in determining whether evidence submitted by an appellant is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In this instance, the appellant has inferred that when he experiences stress related to his psychiatric disorder, his migraine headaches become more frequent and more severe. He, in essence, has suggested a relationship between the two conditions. The Board finds that the appellant's evidence is credible, probative, and it adds weight to the overall claim. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); also Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); see also 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49 (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." The Court pointed out in Gilbert that under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. The record presents diagnoses of PTSD and migraine headaches, and a VA examiner has stated that the appellant's migraine headaches are aggravated by his PTSD. Because the evidence is at very least in equipoise, and since the appellant is supposed to be afforded the benefit-of-the-doubt, the Board concludes that service connection should be granted for migraine headaches. Finally, the Board acknowledges that the VA examiner in July 2012 could not establish a baseline level of disability for the migraine headaches before they were worsened by the service-connected PTSD. The Board acknowledges 38 C.F.R. § 3.310, which states that VA will not concede that a nonservice-connected disability was aggravated by a service-connected disability without such evidence. However, the Board interprets this as a rating consideration- in other words, if baseline evidence cannot be established, the Veteran will not receive a compensable level of compensation for such disability. The plain language of 38 C.F.R. § 3.310 does not openly forbid an award of service connection in the current situation, and that code provision is not deemed to preclude the grant of service connection here. It will later be determined if evidence of quantifiable aggravation exists to support a compensable evaluation, which is not the issue immediately before the Board. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for migraine headaches is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs