Citation Nr: 1310458 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 07-35 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic cephalgia (headaches), to include as secondary to service-connected bilateral hearing loss and tinnitus. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1964 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for service connection for chronic cephalgia. This matter has previously been before the Board, most recently in September 2011, when it remanded the case for additional development of the medical evidence of record. 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). In the instant case, the Board remanded the claim in order to provide the Veteran with the additional opportunity to identify relevant treatment records and to obtain an addendum medical opinion. As will be discussed in further detail below, the Board finds that there has been effective compliance with its 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 headaches are the result of, or are aggravated by, the Veteran's military service or any other service-connected conditions. CONCLUSION OF LAW The Veteran's headaches were not incurred in or aggravated by active military service, they are not the result of or aggravated by a service-connected disability, and a relationship between headaches and active military service may not be presumed. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (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. Before initial adjudication of the Veteran's claim, a letter dated December 2005 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 2005 letter told the Veteran to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. While the Veteran was subsequently provided with notice regarding disability ratings and effective dates in March 2006, 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 and VA medical records are in the file. In its September 2011 Remand, the Board noted that August 2011 correspondence from the Veteran suggested that there were outstanding private medical records relevant to the Veteran's claim. The Board's remand directed the VA Appeals Management Center (AMC) to request that the Veteran identify all relevant sources of medical treatment and provide the RO with all necessary waivers in order to obtain such records. Accordingly, in October 2011, the AMC provided the Veteran with a letter asking the Veteran to identify all sources of medical treatment for his headaches, and it provided the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information, to be completed for each health care provider. To date, the Veteran has not responded to this request for medical information. In September 2012, the Veteran's representative argued that the Veteran's claim should be again remanded because it was "not clear from the record that . . . VA made any effort to obtain any outstanding private medical records." The Board disagrees; as noted above, in October 2011, the AMC solicited relevant information from the Veteran, and the Veteran did not respond. The Board finds that the AMC appropriately attempted to obtain private treatment records consistent with the terms of the Board's remand. Indeed, the Board reminds the Veteran and his representative that the duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances in which he may have information that is essential in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 examinations of his headaches. With respect to the adequacy of these examinations, the Board finds that the examiners 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 these examination reports and opinions are 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 participated in a hearing before a Decision Review Officer in May 2008, and a transcript of this hearing is associated with the record. 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 headaches secondary to service-connected bilateral hearing loss and tinnitus. While the Veteran has not argued that his headaches are directly related to active duty service, in the interest of completeness, the Board will also analyze the Veteran's claim on a direct basis. 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). In order to establish service connection for a claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, 505 (1992). 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required 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); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). While headaches do not appear among the chronic diseases listed in 38 C.F.R. § 3.309, "organic disease of the nervous system" do appear among these diseases. Therefore, to afford the Veteran with every possible means of demonstrating service connection, the Board will consider whether the Veteran has demonstrated a continuity of symptomatology with regard to his headaches. Furthermore, service connection may be granted on a presumptive basis for certain chronic disease, including organic disease of the nervous system, if such disease is 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). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to the facts in the instant case, regarding the first Hickson/Wallin element, evidence of a current disability, the evidence of record indicates that the Veteran has been diagnosed with migraine headaches. The first Hickson/Wallin element, evidence of a current disability, is accordingly met. With regard to the second Wallin element (required to support a claim for secondary service connection), a service-connected disability, the Veteran is service connected for bilateral hearing loss and tinnitus. The second Wallin element is accordingly met. With regard to the second Hickson element (required to support a claim for direct service connection), an in-service injury or disease, as noted above, the Veteran has not directly stated that he suffered from headaches during active duty service. During his May 2008 hearing before a Decision Review Officer, the Veteran indicated that he could not recall whether or not he experienced headaches during the military, and that he recalled no specific in-service trigger for his headaches. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including experiencing readily-observable physical symptoms associated with headache pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In the instant case, however, the Veteran does not claim that he experienced any symptoms associated with his current migraine condition during active duty service. Indeed, as noted above, the Veteran instead claims that his headaches are secondarily related to his bilateral hearing loss and tinnitus. Accordingly, the Board finds that the second Hickson element, in-service injury or disease, is not met, and the Veteran's claim for direct service connection fails on this basis alone. The Board's analysis continues, however, with respect to the Veteran's claim for service connection on a secondary basis. With respect to the third Wallin element, medical nexus, the Veteran received a VA examination in February 2007. The examiner noted that the Veteran gave a history of headache onset in 1975. The Veteran complained of experiencing headaches approximately once monthly. The examiner diagnosed the Veteran with chronic cephalgia by history but provided no opinion regarding the etiology of the Veteran's condition. The Veteran received an additional VA examination in August 2008, at which time the Veteran again stated that he had experienced headaches since 1975. The examiner opined that the Veteran's headaches were not likely caused by his service-connected hearing loss and tinnitus. In June 2010, the VA examiner offered an addendum opinion, stating that the Veteran's migraine-like headaches were not likely related to or aggravated by the Veteran's chronic bilateral hearing loss and tinnitus. The examiner noted that pursuant to the most up-to-date online research, there was no single theory or hypothesis that explained all of the phenomena that occur with migraines. Both genetic and environmental factors are important. No consistent genetic basis has been established for migraines with the exception of familial hemiplegic migraines. The examiner reviewed an extensive list of etiological, precipitating, and triggering factors for migraine headaches, and found that hearing loss and tinnitus were not mentioned among such factors. Thus, the examiner concluded that the Veteran's headaches were not likely related to or aggravated by the Veteran's service-connected bilateral hearing loss and tinnitus. The examiner offered an additional addendum opinion in November 2011, at which time the examiner reiterated his conclusion that the Veteran's headaches were not likely related to or aggravated by the Veteran's service-connected bilateral hearing loss and tinnitus. In August 2011, the Veteran's representative also stated that the rationale was inadequate because the examiner referred to certain precipitating factors for migraine that clearly did not apply to the Veteran, such as female hormonal issues. While the Board agrees that this particular factor does not apply in the Veteran's case, the examiner was simply offering an exhaustive list of precipitating factors for migraine. In other words, the Board does not find that listing an inapplicable precipitating factor detracts in any way from the probity of the examiner's conclusion. To the extent that the Veteran himself believes that his headaches are related either to his active duty military service or to his service-connected conditions, 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 such as 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 such condition 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 suggesting that the Veteran's condition is related to either his active duty service or to his other service-connected conditions, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's headaches and his active duty service or service-connected conditions, with greater probative weight than these lay opinions. With respect to service connection based on a continuity of symptomatology, in his February 2007 and August 2008 VA examinations, the Veteran stated that he began experiencing headaches in 1975, approximately seven years following separation from active duty service. In his May 2008 hearing before a DRO, the Veteran stated that he had experienced headaches since "the early 1970's." Upon review of these records, the Board finds that the record does not support a continuity of symptomatology associated with headaches since separation from active duty service. Furthermore, the record does not support an award of service connection on a presumptive basis. The first notation of headaches occurred only by history in the Veteran's February 2007 VA examination, 39 years following the Veteran's separation from service in 1968. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, the Board finds that the Veteran's claim for service connection for headaches cannot be established based either on a continuity of symptomatology or on a presumptive basis. 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 headaches are not related either to his military service or to his service-connected conditions. The benefit sought on appeal is accordingly denied. ORDER Service connection for headaches is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs