Citation Nr: 1308569 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 08-06 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for chronic migraine headaches. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from October 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the benefits sought on appeal. In June 2012, the Veteran presented testimony relevant to the appeal at a hearing held before the undersigned at the local RO. A transcript of the hearing is of record. Following the hearing, the record was held open in order to allow the Veteran additional time and opportunity to submit medical records in support of the appeal. In August 2012, he wrote that he was unable to obtain the additional medical records and asked that the case be considered without the records. In October 2012, the Board remanded the case for further evidentiary development and the case is now ready for disposition. The issue of entitlement to service connection for an acquired psychiatric disorder, to include major depression, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See March 2010 VA Form 21-4138. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT Symptoms of the Veteran's currently diagnosed chronic migraine headaches manifested many years after separation from active service and are not causally or etiologically linked to active service. CONCLUSION OF LAW The Veteran's chronic migraine headaches were not incurred in active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). Proper notice from VA 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) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the July 2006 notice letter sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection, the information and evidence that he was to provide, and the information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits for the claimed disorder, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied with respect to the claim prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran was provided with a copy of the above rating decision, the SOC, and multiple SSOCs, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the bases of the decision, and a summary of the evidence considered. Regarding VA's duty to assist in claims development, the Board notes that the claims file contains all available evidence pertinent to the claim adjudicated herein. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claim and the record contains sufficient evidence to make a decision on the claim. The Veteran's complete service treatment records are contained in the claims file. Also, pertinent post-service treatment records adequately identified as relevant to the claim have been obtained or otherwise submitted and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA file. Furthermore, records from the Social Security Administration have been obtained and are associated with the claims file pursuant to the Board's October 2012 Remand order. The Veteran has not been afforded a medical examination and a medical opinion has not been obtained in connection with the claim. However, the Board finds that no medical examination or medical opinion is needed. The Veteran's account of in-service headache symptomatology is not deemed credible, migraine headaches manifested many years after service, and there is no competent and credible evidence to suggest any link between the Veteran's chronic migraine headache and service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required. The Board further finds that there has been compliance with the October 2012 Board Remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence 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). When there is an approximate balance in the 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(b) (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that 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. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as migraine headaches as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); 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"). 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. Service Connection for Chronic Migraine Headaches In the present case, the Veteran contends that symptoms of his currently diagnosed chronic migraine headaches began during service and have continued, with worsening, since that time. At the outset, the Board finds that there is ample evidence of record showing that the Veteran is currently diagnosed with chronic migraine headaches. The Veteran's VA treatment records include numerous assessments of, and document treatment for, migraine headaches. See, e.g., VA primary care outpatient note dated October 21, 2009. Nonetheless, after a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows no relevant injury or disease or symptoms of chronic migraine headaches occurring during service. The Veteran's service treatment records, which are complete, are absent of any complaint, finding, or treatment for chronic migraine headaches. Although the Veteran testified at the Board hearing that he began to get headaches in the second year of his three-year service term, the statement is not consistent with other, more credible evidence contained in the record. Indeed, when the Veteran completed a Medical Health Questionnaire in September 1983 (i.e., approximately one year before service separation), he circled "Yes" when asked if he considered himself to be in good health. On the questionnaire, he also circled "No" when asked if he had any disease, condition, or problem not listed on the questionnaire that he believed that the service dental provider should know of. Significantly, the Veteran did not indicate that he had any chronic symptoms of headache at that time, which weighs against the credibility of the hearing testimony. Additionally, the Veteran provided inconsistent statements during the Board hearing regarding alleged medical treatment received for headaches during service. Specifically, the Veteran testified that he went to sick call a couple of times during service to receive treatment for the headaches but mostly treated the headaches himself during service with over the counter medication; however, he had previously stated at the hearing that he did not get treated for headaches in service because he did not know what they were. See June 2012 Board hearing transcript, pages 3, 10-11. Additionally, the assertion that the Veteran received medical treatment for headaches during service is not supported by the service medical evidence, to include the Veteran's own statements during service. On the September 1983 Medical Health Questionnaire, the Veteran circled "No" when asked if he was seeing a medical doctor for anything. He also circled "No" when asked if he was taking any medicines or drugs on the questionnaire. Although the Veteran elected not to undergo a service separation examination, his medical records were reviewed by a physician to determine if a medical examination should be accomplished. It was determined that a service separation examination was not required. Upon review, the Board finds it unlikely that such a medical determination would have been made if the Veteran had complained of and been seeking treatment for symptoms of chronic migraine headaches during service. As the service treatment records were generated contemporaneous to the Veteran's period of active service, the Board finds them to be particularly credible and of great probative value and weigh against finding that chronic migraine headaches manifested in service. The Board also observes that the Veteran has repeatedly told medical providers that symptoms of migraine headache began in the early to mid-1990s. See February 1999 progress note (noting that the Veteran's migraine headaches reportedly began five years before); see also July 1998 neurological progress note (noting that the Veteran reportedly had a history of migraine headaches for four to five years and was diagnosed approximately two years before). Also, when completing a headache questionnaire in March 2006 as part of an application for Social Security Disability benefits, the Veteran reported that he had had headaches for ten years, which similarly relates the onset of migraines to the mid-1990s, many years after service. These statements are highly probative and further weigh against the credibility of the allegation that the Veteran's headache symptomatology began in service. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, the weight of the evidence is against finding that chronic migraine headaches and/or its symptoms have been continuous since separation from active service or that chronic migraine headaches manifested to a compensable degree within one year of service separation. As mentioned above, service treatment records are absent of any complaints, findings, or treatment for chronic migraine headaches, and post-service treatment records show that the Veteran repeatedly told medical providers when receiving medical treatment in the late 1990s that chronic migraine headaches had begun and was first diagnosed in the early to mid-1990s, many years after service. The Veteran is competent to report a past diagnosis of chronic migraine headaches and the multiple statements made to medical providers consistently relating the onset of headache symptomatology to a time many years after service separation is deemed particularly credible and highly probative to the claim, as stated above. Thus, as the Veteran's assertion that he began to experience migraine headache symptomatology during service and self-treated the symptoms with over the counter headache medication is inconsistent with other, more credible evidence of record, to include his own prior statements made in service and during the course of medical treatment, it is not deemed credible and is afforded little probative value. The absence of post-service findings, diagnosis, or treatment until many years after service is one factor that tends to weigh against a finding of chronic migraine headaches in service or continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). In consideration of the foregoing, the Board finds that the evidence showing the absence of any complaint, finding, or treatment for chronic migraine headaches during service, the Veteran's repeated statements to medical providers relating that chronic migraine headache symptomatology began many years after service, and a medical diagnosis of chronic migraine headaches first made years after service to be far more credible and of greater probative weight than the Veteran's unsupported lay allegation made more recently after having filed a disability claim with VA for compensation purposes that chronic migraine headache symptomatology had its onset in service or in the first post-service year. Thus, as the credible and probative evidence shows that the Veteran's migraine headaches first manifested many years after separation from active service, a continuity of symptomatology since service is not shown. The Board further finds that the weight of the evidence is against finding a causal or etiological relationship between migraine headaches that developed years after service and active service. No competent medical professional has ever suggested that the Veteran's migraine headaches are in any way related to active service. Although the Veteran has asserted that he began to experience physical signs and symptoms of an illness that he believes was chronic migraine headaches during service, he is a lay person and does not have the requisite medical expertise to be able to render a competent medical opinion regarding the cause of the chronic migraines or the symptoms attributable thereto. The etiology of the Veteran's migraine headaches is a complex medical etiological question, and chronic migraine headache is a disorder diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to relate symptoms that he experienced at any time, he is not competent to attribute headache symptoms to the diagnosis of migraine or link any migraine headache disorder to active service. Moreover, as explained above, the Veteran's assertion that headache symptomatology began during service is inconsistent with other, more credible statements made by the Veteran, as well as the medical evidence during and after service; therefore, it is not deemed credible and afforded no probative value. Thus, the Board finds that the credible and probative evidence of record shows that the Veteran's chronic migraine headaches manifested years after service separation and is not causally or etiologically related to service. Therefore, a preponderance of the evidence weighs against the claim and service connection for chronic migraine headaches is not warranted on either a direct basis or on a presumptive basis as a chronic disease. (CONTINUED ON NEXT PAGE) ORDER Service connection for chronic migraine headaches is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs