Citation Nr: 1309258 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 05-02 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a headache disorder, to include as secondary to posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from June 1968 to June 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In April 2008 and June 2010, the Board remanded for additional development and due process concerns. A hearing before the Board was held at the RO in August 2006. The hearing transcript has been associated with the claims file. FINDING OF FACT A headache disorder did not have its onset in service, is not related to service and was not caused or aggravated by the service-connected posttraumatic stress disorder. CONCLUSION OF LAW The criteria for service connection of a headache disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran seeks service connection for headaches. He contends that the headaches are either directly attributable to his military service or secondary to his service-connected posttraumatic stress disorder (PTSD). He has reported the headaches onset after injury while stationed in Vietnam. He has alternately reported that the headaches onset after he sustained a head injury (which resulted in loss of teeth) prior to going to Vietnam. See, e.g., August 2006 hearing transcript; 2009 VA examination records. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability, of in-service occurrence or aggravation of a disease or injury, a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The June 1968 enlistment examination record reflects the Veteran's history of frequent or severe headache. Clinical evaluation was normal for all systems, however, and no diagnosis was rendered. In reference to the history of headaches, the examiner noted that the Veteran "wore glasses." Because the enlistment examination does not reveal any abnormal clinical findings, the Veteran is presumed sound at entry. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). A February 1969 treatment record reflects the Veteran's history of supraorbital headaches and occasional "dim" vision. He explained that he was involved in a car accident one week earlier in which he struck his forehead. After examination, the Veteran was assessed with post-concussion syndrome and traumatic uveitis. An ophthalmology consultation revealed two large chalzions. The June 1970 separation examination reveals normal clinical findings for all systems and the Veteran's history that he was in "good condition." An October 2003 VA examination record reflects the Veteran's history of developing a "headache problem" while serving in Vietnam. He reported that the frequency and severity of the headaches had progressed since onset. He added that a physician wanted to "hold him over because of his headache problem" during his separation physical, but he declined. Examination revealed no localizing neurological findings. The impression was migraine. A June 2004 VA treatment record reflects the Veteran's history of headaches for the previous ten years. He was diagnosed with headaches. The Veteran reported the same history of headaches for the previous 10 years in March 2005. See March 2005 VA treatment record. In August 2006, the Veteran presented testimony at a hearing before the Board. There, he testified he had headaches in service while he was in Vietnam, which he attributed were due to stress. He stated that when he would get these headaches, he would need to get into a cool place and relax. He noted he would get the headaches when he felt claustrophobic. The Veteran noted he was being seen by a doctor for his headaches. He stated he was no longer working, in part, because of his headaches. He testified he had blacked out on the job while he was still working, which frightened him because of the machinery at his work. The Veteran stated that the medical professional treating him for PTSD attributed the headaches to the PTSD. He stated he hit his head while in service while training for Vietnam, which knocked out his teeth. A September 2009 VA neurological examination record reflects the Veteran's history of headaches since he served in Vietnam. He denied headaches prior to service. The Veteran indicated that while in Vietnam, he "experienced a series of thumps on his helmet" while on patrol and that shortly thereafter he went to sick call for headaches. After examination and review of the record, the Veteran was assessed with migraine headaches. The examiner opined that the etiology was unknown, that the disorder was not present prior to service, and that it was at least as likely as not that the migraine disorder was the result of service, specifically the in-service "thumping." The examiner further opined that it was unlikely that the migraine disorder was causally related to PTSD. The examiner was unable to render an opinion on the issue of aggravation by PTSD. The examiner added that the claims file had little contributing information and that the Veteran's history was "unique." The September 2009 VA examiner provided an addendum in September 2010. The examiner noted that the claims file was reviewed and the Veteran was called. The examiner reported that the Veteran explained that he when he said "thumping," he was "merely using the symbolism of bombs dropping in his vicinity. He added that the headaches included "thumping" and that "the cause of the actual thumps was a military attack with bombs which were not witnessed." The examiner concluded that the Veteran was reporting that he had classic thumping or throbbing headaches back to 1969 or 1970 and that the cause of the thumping was bombs which were heard and not personally attacking the Veteran. The examiner believed the thumping was not a credible issue and asked that his previous opinion with respect to the thumping be deleted. The examiner determined that it was not as likely as not that the Veteran's migraine headaches onset in service. The examiner added that the headaches have no documentation as to a cause or onset during service and that they were of uncertain cause. The examiner explained that although the Veteran presented with a history of headache in February 1969, while at Fort Campbell, the complaint was not followed by documented pattern of chronic headaches and a history of headaches was not reported at separation. The examiner indicated that he had not found evidence for a chronic migraine headache caused by or a result of service. A July 2011 statement from a treating psychiatrist indicates that the Veteran believed his headaches were directly caused by Vietnam combat issues and that the Veteran had reported that his psychotropic treatment had been quite helpful in reducing the secondary stresses that played a contributing part to the headaches. The statement does not include any medical findings with respect to the relationship between the headaches and service or the service-connected disability; it is merely a recital of the Veteran's histories. See July 2011 Schwartz statement. A November 2011 VA "mental disorders" examination reveals the Veteran's history of headaches since losing consciousness while under attack on patrol in Vietnam. He reported that he received treatment for the headaches while in Vietnam. The examiner agreed with the September 2009 VA examiner's opinions. The examiner reported the Veteran may have experienced traumatic brain injury in service which manifested itself in recurrent migraine-type headaches. The examiner added that the headaches were most likely caused by the head injury with loss of consciousness in Vietnam. The examiner explained that "these episodes" of head injury with loss of consciousness are well-known causes of "these and similar sequelae in veterans of combat." The examiner noted that there was no medical evidence that headaches were ever caused by PTSD or any other behavior health disorder and determined that the Veteran's migraine headaches were not caused by or a result of PTSD. In November 2012, VA received an opinion from a Veterans Health Administration (VHA) specialist. The specialist, a neurologist, determined that it was not at least as likely as not that the headaches had their onset in service or were otherwise related to service. The specialist noted that the Veteran reported headaches prior to enlistment and that he then had no record of consistent headache treatment until 2004. The specialist further determined that it was not at least as likely as not that the headaches were due to the PTSD. The specialist noted that the Veteran demonstrated no continuous record of treatment during the 24 years after discharge concerning headaches. Therefore, the specialist believed no service-related proximate cause or proximately exacerbating influence would be at all likely based on the evidence. Finally, the specialist determined that it was less likely than not that the headaches were aggravated by PTSD. The specialist acknowledged that stress and anxiety can make headaches worse. The specialist noted, however, that the record contained histories which had been found not credible and a history of treatment in Vietnam which was not substantiated by the record and that the record included no objective evidence that the PTSD was leading to worsened headaches. The specialist reported that it was hard to judge because headaches are assessed based on a person's history and not objective findings. The specialist determined that it was less likely that the headaches had been exacerbated by PTSD because the record raised questions about the Veteran's credibility. Service connection is not warranted for a headache disorder because the preponderance of the evidence shows that a headache disorder was not present in service and is not related to service. The Board acknowledges that the Veteran reported headaches in service. However, the probative evidence does not suggest that a headache disorder had its onset in service. Rather the evidence suggests that the February 1969 complaints were an acute reaction to the accident, rather than a manifestation of a chronic disorder: subsequent service treatment records reflect no histories suggestive of persistent symptoms, the Veteran did not report any history of headaches at separation, instead reporting that he was in "good condition;" and the initial evidence suggestive of a chronic disorder dates more than 30 years after separation. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). Additionally, when the Veteran first submitted a claim for VA benefits in 1979, it was for syphilis and not headaches, which is evidence against there being a chronic headache disorder that started in service. The Board acknowledges that the Veteran has reported that his headache disorder began in service. Although the Veteran is competent to report his symptomatic history, the Board finds the history is not credible, and thus not probative. Specifically, the Veteran has provided conflicting histories as to the date of the onset (i.e. that they onset prior to service in Vietnam, during service in Vietnam, or in approximately 1994), and conflicting histories as to the nature of the onset (i.e. that they had their onset after a training injury prior to deployment or as a result of enemy attack in Vietnam), and the reported injuries, loss of consciousness, and treatment during service in Vietnam are contradicted by the record. The service treatment records reflect only one history of headaches, which predates the Veteran's service in Vietnam and which was attributed to a motor vehicle accident. Because the Veteran received treatment on that occasion, the Board finds the Veteran would have received treatment for any subsequent episode of headaches, and there is no indication that any service treatment records have been lost or are held in a separate location. The record includes treatment records dating during the Veteran's Vietnam service and the Veteran has not reported treatment in a hospital or at any other location which might result in separate storage of the records. Furthermore, a VA examiner has opined that a headache disorder did not have its onset in service, and the Board finds the examiner's opinion is probative, as the examiner provided a rationale based on the credible evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (opinion's probative value determined by whether it is supported by a detailed rationale/explanation); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In the absence of countervailing probative evidence of a headache disorder during service, the Board finds the evidence does not suggest that a headache disorder was present during service. Additionally, the competent and probative evidence does not establish a link between the headache disorder and service. The Board acknowledges that the record includes two positive nexus opinions from VA examiners. These opinions, however, are based on the Veteran's histories of injury and loss of consciousness during service, which the Board finds lack credibility. Thus, the opinions are not probative evidence. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006) (the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the Veteran that formed the basis for the opinion). In contrast, the Board finds the VHA specialist's opinion and the 2010 addendum opinion from the VA examiner are probative as they are based on facts that the Board accepts are true (which is that the Veteran's statements lack credibility) and are supported by rationale. The competent and probative evidence also does not establish a link between the headache disorder and the service-connected PTSD. The record does not include any medical findings of a link between the two conditions, though it does include probative opinions that the conditions are not related, either through causation or aggravation. The Board acknowledges that the Veteran believes the conditions are related, and that this belief has been transcribed by a VA medical professional. Initially, the Board notes that the Veteran is not competent to offer an opinion as to whether his PTSD caused the headache disorder: such a determination is a question of medical complexity which requires specialized knowledge that the record does not suggest the Veteran has. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). See also Jandreau, 492 F.3d at 1376-77. The Veteran is competent to report the interplay between his headaches and PTSD, to include that his headaches worsen when his PTSD is exacerbated. For the reasons outlined above, however, the Board finds the Veteran is not a credible historian. As such, the Veteran's histories are not probative evidence of aggravation, and in the absence of probative evidence of a link between the PTSD and the headache disorder, the Board finds the headache disorder is not secondary to the PTSD. In sum, the Board finds the Veteran is not a credible historian and that the probative evidence does not suggest that the headache disorder onset in service, is causally related to service, or was caused or aggravated by PTSD. Thus, the claim is denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Substantially compliant notice was sent in October 2003, March 2006, and June 2008, and the claim was readjudicated in a January 2010 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, obtained probative medical opinions as to the relationship between the headache disorder and service and PTSD, and afforded the appellant the opportunity to give testimony before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned identified the issue on appeal. The Veteran's representative solicited testimony that indicated that the appellant is aware of the evidence necessary to substantiate the claim by establishing that headaches had their onset in service or are due to the service-connected PTSD. The Board then remanded the claim for additional development and adjudicative action based, in part, on the Veteran's testimony. The Bryant requirements were thus met. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file (and either adjudicated by the AOJ or had such adjudication waived), and the appellant has not contended otherwise. Following receipt of the VHA opinion, a copy of it was sent to the Veteran, and he was given an opportunity to respond to the opinion. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board remand: the record includes probative opinions as to the whether the headache disorder onset in service, is causally related to service, was caused by the service-connected PTSD, or was aggravated by the service-connected PTSD. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for a headache disorder is denied. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs