Citation Nr: 1309330 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 09-08 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for headaches (listed as migraine headaches). In September 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. In November 2011, the Board remanded the claim for further development. In a statement in September 2011, the Veteran raised the claims of service connection for heart disease and for residuals of colon cancer to include as due to Agent Orange exposure. In November 2012, the Veteran raised the claim for increase for a bilateral hearing loss. The claims are referred to the RO for appropriate action. FINDING OF FACT Headaches are unrelated to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for headaches have not been met. 38 U.S.C.A §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided a pre-adjudication VCAA notice by letter dated in October 2006. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran was afforded a VA examination in January 2012 and addendum was obtained in March 2012 and a medical opinion was obtained December 2012. The Board has reviewed the examination report with the addendum, and the VA medical opinion. As the examination report with the addendum and the VA physician's opinion are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report with the addendum and the VA medical opinion are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified diseases, but headaches, including migraine, are not one of the specified diseases. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232 (1999). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran served on active duty from November 1968 to October 1970, during the Vietnam era. The National Personnel Records Center reported that the Veteran served aboard the USS Buckley which was in the official waters of Vietnam from August 31, 1969, to September 25, 1969; from October 2, 1969, to October 28, 1969; from December 6, 1969, to December 23, 1969; and from January 3, 1970, to January 22, 1970. The U.S. Armed Services Center for Unit Research Records reported that from December 5, 1969, to December 23, 1969, the USS Buckley, on an illegible date during December 1969, proceeded to Da Nang, Vietnam, and offloaded and departed immediately afterward. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of headaches. On entrance examination in August 1967 and on a periodic examination in November 1968 the Veteran denied a history of headaches. On separation examination in September 1970, headaches were not listed in the medical history or in the summary of defects and diagnoses. After service, private medical records in August 2000 included a history of migraine. In January 2003 for evaluation of chest pain, there was no history of migraine or cluster headaches. VA records in August 2008 and in September 2009 included a history of migraine. In a statement in September 2011, the Veteran's wife stated that she met the Veteran in 1970 while he was in the Navy and that the Veteran complained of headaches then and ever since. She stated that the Veteran saw several physicians and he was given medication, but records were no longer on available. In statements in September 2011, the Veteran's brother stated that the Veteran had complained of headaches for years. The Veteran's sister stated that for as long as she could remember the Veteran had migraine headaches, which seemed to have started after he returned from the Navy. The Veteran's son and daughter stated that for as long as they could remember the Veteran had suffered from migraine headaches. A friend of the Veteran for forty years stated that the Veteran told him about recurring headaches. A friend of the Veteran for fifteen years stated that she knew the Veteran had headaches. In January 2012 on a VA neurological examination the Veteran stated that he has had headaches since 1969 on active duty, while serving offshore in Vietnam. He stated that he self-managed the headaches in service. He stated that he was treated after service and that he was diagnosed with migraine headaches. The diagnosis was migraine headaches. The VA examiner reported that the date of the diagnosis was unknown. In an addendum in March 2012, the VA examiner reported that the Veteran's claims file had been reviewed. The VA examiner stated that there were no service records pertaining to a complaint or diagnosis of headaches and that the entrance examination report and the separation examination report did not refer to headaches. The VA examiner noted that VA records listed migraine in a problem list in December 200, but not treatment. The VA examiner stated that there was no evidence found linking the headaches to service. In December 2012, a VA physician reviewed the Veteran's file and discussed the Veteran's medical history in great detail. The VA physician expressed the opinion that the migraine headaches were less likely than not (less than a 50 probability) incurred in or caused by or aggravated by an in-service injury, event, or illness. The VA physician explained that there were no entries in the service treatment records of headaches, no current medication for treatment or prevention of headaches, and no visits for migraine headaches. The VA physician stated that although the Veteran had been consistent in describing his headaches with a history of onset in service, the first documentation of migraine headaches, as part of the Veteran's medical history, was in August 2000. The VA physician commented that if the lay statements of the Veteran, his family, and friends, attesting to his version of the onset of headaches onset and the continuity of symptoms, were deemed competent and adequate, then the nexus medical opinion would be favorable. Analysis The Veteran contends that headaches are related to service to include as due to exposure to Agent Orange while serving aboard the USS Buckley in Vietnam. The Veteran states that the USS Buckley docked in Da Nang. The Veteran also asserts that his headaches were caused by the stress of the missions performed by the USS Buckley. He states that he has suffered from headaches during service and since service. Whether or not the Veteran was exposed to Agent Orange, and the Board does not reach the question here, headaches, including migraine, are not among the diseases listed as presumptively associated with Agent Orange exposure. And presumptive service connection for headaches, including migraine, due to Agent Orange exposure is not warranted. 38 C.F.R. § 3.309(e). The Veteran may, nonetheless, establish service connection if the evidence shows that headaches were, in fact, caused by exposure to Agent Orange or some other event in service. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). On the basis of the service treatment records alone, headaches were not affirmatively shown to have present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception during service) is not warranted. Nevertheless the Veteran is competent to describe headaches. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). In his statements and testimony, the Veteran asserts that his headaches had onset in service, which raises the theory of service connection based on chronicity and continuity of symptoms under 38 C.F.R. § 3.303(b). The continuity of symptomatology avenue of service connection, creating a presumption of service connection for chronic diseases manifesting during service and then again at a later date, is available only for chronic diseases enumerated in 38 C.F.R. § 3.309(a), the only regulation listing named chronic diseases. Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Headaches, including migraine, are not listed as a chronic disease in 38 C.F.R. § 3.309(a), chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. Service connection may be still be established pursuant to 38 C.F.R. § 3.303(d) for a disability diagnosed after service when competent and credible evidence links the disability to service. The Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d 1372). Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. Although the Veteran and the other lay witnesses are competent to describe headaches, which are capable of lay observation, and as the Veteran is competent to offer an opinion on a simple medical condition, such as headaches, competency only goes to the question of whether the lay evidence should be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker, 10 Vet. App. at 74. As for credibility, the Board finds that although the Veteran's statement and testimony and the statement of his wife that headaches began in service have been consistent, the statements and testimony are inconsistent with other evidence. The record shows that on separation examination, headaches were not listed in the medical history or in the summary of defects and diagnoses. After service, private medical records in August 2000 included a history of migraine and VA records in August 2008 and in September 2009 included a history of migraine, but the history does not extend to service. And in January 2003, there was no history of migraine or cluster headaches. Except for lay statements, the Veteran has not produce any evidence of treatment for headaches or clinical visits for headaches since he filed his claim, which weighs against the lay assertion that the Veteran has had persistent headaches since service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the entire medical history, including a lengthy period of absence of complaints.); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In weighing credibility, VA may consider inconsistencies with other evidence. Because of the inconsistencies with other evidence, the lay statements and testimony, including other lay statements of family and friends, lack credibility and have no probative value on a question of a material issue of fact, persistent headaches since service. As the lay evidence is not favorable to the claim, the Board looks to the medical evidence of record. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. The Veteran has not produce any competent and credible medical evidence that headaches are the result of the stress of serving aboard ship off the coast of Vietnam or that headaches are actually caused by exposure to Agent Orange or that headaches are linked to service by a diagnosis by a medical professional based on symptoms described by the Veteran. The medical evidence of record consists of the opinions of VA examiners, who are qualified through education, training, or experience to offer a medical diagnosis and opinion. In January 2012 on a VA neurological examination, the diagnosis was migraine headaches, and in an addendum the VA examiner stated that there were no service records pertaining to headaches and no treatment of headaches and no evidence linking the headaches to service. In December 2012, a VA physician expressed the opinion that the migraine headaches were less likely than not (less than a 50 probability) incurred in or caused by or aggravated by an in-service injury, event, or illness. The VA physician explained that there were no entries in the service treatment records of headaches, no current medication for treatment or prevention of headaches, and no visits for migraine headaches. The opinions of the VA examiners constitute competent and credible medical evidence against the Veteran's claim. And there is no other medical evidence to weight against the negative opinions. For this reason, the Board finds that the opinions of the VA examiners are persuasive evidence against the claim. As for one VA examiner, stating the nexus opinion would be favorable, if the lay statements were competent and adequate, while the lay evidence is competent evidence, the evidence is no adequate because of the lack of credible evidence of persistent headaches since. As the preponderance of the evidence is against the claim of service connection headaches, there is no doubt to be resolved and service connection for headaches is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for headaches is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs