Citation Nr: 1308706 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 95-04 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of head trauma, to include headaches. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran had active military service from June 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota, which, in pertinent part, denied service connection for post-traumatic headaches. The Veteran appealed the RO's rating action to the Board. This matter has previously before the Board, most recently in March 2012, when it remanded the Veteran's claim in order to request additional pertinent medical records from the Veteran and to provide the Veteran with a VA examination. The VA Appeals Management Center solicited such records from the Veteran in March 2012, and the Veteran was provided with an additional VA examination in April 2012. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) FINDING OF FACT The weight of the probative evidence is against a finding that the Veteran's residuals of head trauma, to include headaches, are of service onset or otherwise related to the Veteran's military service. CONCLUSION OF LAW Residuals of a head trauma, to include headaches, were not incurred in or aggravated by service and may not be presumed to be. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304 3.307, 3.309 (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, the evidence submitted by the Veteran 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 claim decided herein. 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). The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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 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. Prior to initial adjudication of the Veteran's claim, a letter dated December 2002 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to provide VA with any evidence pertaining to the claim. The December 2002 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Any questions as to the appropriate disability ratings or effective dates to be assigned are moot, and no further notice is needed, because the Board has concluded that the preponderance of the evidence is against the claim for service connection. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, records from the Social Security Administration, and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Board finds that the RO has made all appropriate attempts to identify pertinent records identified by the Veteran. When VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the instant case, the Veteran has been provided with a number of examinations of his headaches. The Board's March 2012 Remand identified a number of deficiencies with respect to the examinations that the Veteran had received, and it remanded the Veteran's appeal for a new VA examination. The Veteran received an additional VA examination in April 2012. With respect to the adequacy of this examination, the Board finds that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that this examination report and opinions is adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012) see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not alleged weaknesses in the examination. The Veteran declined to participate in a hearing before a Veterans Law Judge. The Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran essentially contends that he suffers from residuals of head trauma, to include headaches, as a result of military service. Service connection may be granted for disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection may be granted on a presumptive basis for certain chronic diseases, including organic disease of the nervous system, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required for an organic disease of the nervous system when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012). To establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999). Turning to the facts in the instant case, regarding the first Hickson element, evidence of a current disability, the evidence of record indicates that the Veteran has been diagnosed with headaches. The first Hickson element, evidence of a current disability, is accordingly met. With respect to the second Hickson element, an in-service disease or injury, the Board observes that in August 1966, the Veteran was admitted to a Navy hospital after he was found unconscious in his quarters. The admitting diagnosis was cerebral confusion. The Veteran gradually regained consciousness, but he remained confused. The Veteran was returned to full duty with no discharge medication. The second Hickson element is accordingly met. With respect to the third Hickson element, medical nexus, the Veteran received a VA examination in May 2005. The examiner saw no evidence supporting the Veteran's contention that he received an in-service head injury. The examiner noted that the Veteran had facial scarring from a 1970 motor vehicle accident. The examiner stated that the Veteran's headaches were likely muscle tension headaches, although a migraine component could not be ruled out. The examiner was unable to offer an etiological opinion regarding the Veteran's headaches without resorting to speculation because she was unable to locate any reference to an in-service injury. A February 2006 VA outpatient report reflects that the Veteran had chronic headaches that were thought to have been post-traumatic in nature. The Veteran was provided with a VA examination in June 2009. As the Board noted in its March 2012 Remand, the examining physician concluded, after consulting with a VA staff neurologist about the Veteran's case, it was more likely than not his headaches were not related to his military service because they began before military service and were not aggravated beyond their normal progression in service. The examining physician reasoned that while the Veteran provided a history of in-service head trauma, this was not sustained in his medical records. The examining physician noted that the Veteran had been involved in a significant interceding motor vehicle accident in the 1970's, which the examiner determined was more likely than not an aggravating factor due to the severity of the accident and because it had occurred more recently than the Veteran's service time. The Board places relatively little probative weight on this opinion for the reasons set forth in its March 2012 Remand. First, it is unclear whether the examiner reviewed the Veteran's claims file before rendering this opinion. Second, the June 2009 VA examiner's opinion is incomplete because the examiner failed to discuss the Veteran's in-service cerebral confusion incident. Third, the Board questioned the VA examiner's finding that the Veteran's headaches preexisted military service. While the Veteran gave a history of having had headaches since the 1960's, the Veteran was enrolled in the military from 1965 to 1967. Thus, it does not necessarily follow that his headaches preexisted military service and, indeed, the Veteran has not argued such. An August 2009 VA treatment record indicated that the Veteran suffered from headaches, and it opined that they were possible variants of migraines with narcotic rebound stress. Pursuant to the Board's April 2012 Remand, the Veteran received a VA examination in April 2012. The examiner reviewed the Veteran's claims file and concluded that the Veteran's chronic daily headaches were not caused by or the result of military service. The examiner observed that there were no notations of headaches in the Veteran's service treatment records, nor was there any documentation of headaches within one year of discharge from active duty service. The examiner specifically addressed the Veteran's in-service incident of experiencing cerebral confusion in August 1966, and the examiner observed that this condition resolved within 24 hours with no diagnosis or residual. The examiner further observed that the Veteran denied any head trauma occurring in connection with this incident, and the examiner observed no documentation of headache symptoms, evaluation, diagnosis, or treatment. Instead, the examiner opined that the Veteran's headaches most likely began after discharge from service and were multifactorial in origin, related to the Veteran's documented trauma after service, history of polysubstance abuse, chronic sleep disturbances, psychosocial stressors, or chronic opioid abuse. Upon consideration of all of this evidence, the examiner concluded that the Veteran's headaches were not caused by or the result of military service. Upon review of this evidence, the Board finds that VA examiners have consistently been unable to link the Veteran's headaches with any incident that occurred in active service nor were they present to a compensable degree within one year of service discharge. The Board finds the opinion of the April 2012 VA examiner to be highly probative because its conclusions regarding etiology followed an examination of the Veteran and a review of the Veteran's claims file and pertinent medical history. To the extent that the Veteran himself believes that his headaches are related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms associated with headache pain). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with examinations based on the competency of these observations. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of headaches, the issue of causation of headache pain is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record both from the Veteran and from others suggesting that the Veteran's headaches are related to his military service, the Board ultimately affords the objective medical evidence of record, which consistently fails to find a connection between the Veteran's headaches and his military service, with greater probative weight than these lay opinions. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's residuals of head trauma, to include headaches, are not related to his military service. Accordingly, the third Hickson element, competent evidence of nexus, has not been satisfied. A basis for a grant of service connection on a presumptive basis has not been presented. The benefit sought on appeal is accordingly denied. ORDER Service connection for residuals of head trauma, to include headaches, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs