Citation Nr: 1311501 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-23 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease. 3. Entitlement to an initial compensable disability rating for right knee valgus instability prior to June 21, 2011, and in excess of 10 percent from June 21, 2011. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1974 to January 1976. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey which granted service connection for right knee degenerative joint disease and assigned a 10 percent evaluation effective February 3, 2009, and denied service connection for migraine headaches. In a subsequent December 2011 rating decision, the RO granted a separate 10 percent evaluation for right knee valgus instability effective June 21, 2011. Because the separate rating was granted in conjunction with the appeal for a higher initial rating for right knee degenerative joint disease, the Board has jurisdiction over this issue. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The Veteran testified at a June 2012 Board personal hearing in Newark, New Jersey (Travel Board). The hearing transcript has been associated with the claims file. The issues of entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease, and an initial compensable disability rating for right knee valgus instability prior to June 21, 2011, and in excess of 10 percent from June 21, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not exhibit symptoms or a disability related to headaches in service. 2. The Veteran did not have symptoms of related to headaches after service separation. 3. The Veteran does not have a currently diagnosed chronic disability related to claimed headaches. CONCLUSION OF LAW The criteria for service connection for migraine headaches are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. 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. Id. In a February 2009 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The February 2009 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, service personnel records, VA treatment records, and the Veteran's statements and testimony. During the June 2012 Travel Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony to help identify any in-service treatment and current treatment for his claimed disabilities. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) The Veteran has not been afforded a VA medical examination with respect to the claim for service connection for migraine headaches; however, the Board finds that a VA examination is not necessary in order to decide this issue. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Because the weight of the evidence demonstrates that the Veteran had no in-service injury or disease related to headaches or migraine headaches, and the weight of the evidence does not indicate that the Veteran has current headache disability that may be associated with service, there is no duty to provide a VA medical examination. Moreover, the evidence of record does not establish that the Veteran has a currently diagnosed chronic headache disability. Absent evidence of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002); 38 C.F.R. § 3.159(d). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, or even symptoms, referral of this case to obtain an examination and/or an opinion as to the etiology of claimed migraine headaches would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the claimed migraine headaches and service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). VA must obtain Social Security Administration (SSA) records where either (1) there is an SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection, or (2) there are specific allegations "[giving] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran indicated that he is receipt of SSA disability benefits. The Board finds, however, that a remand for SSA records is not necessary prior to adjudication of the claim for service connection for migraine headaches as the Veteran specifically testified that he is receiving SSA benefits because of his knee disability, a heart condition, the kidneys, diabetes, and high blood pressure, and he has not made any allegations that might give rise to a reasonable belief that SSA records may pertain to claimed migraine headaches. The Veteran has indicated all his medical treatment has been at VA, and VA treatment records have already been obtained. Thus, the Board finds that there is no reasonable possibility that SSA records could help the Veteran substantiate the Veteran's claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits"). Additionally, the Board finds that there is no credible evidence of an injury, event, disease, or symptoms related to headaches in service. Absent a finding of an injury, event, disease, or even symptoms of a headache disability in service, the Board finds that VA's duty to assist the Veteran in obtaining additional evidence to support a nexus has not been triggered. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide to provide a medical examination. For these reasons, the Board finds that a remand for additional development is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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. § 1110, 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 claimed headache condition at issue are not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 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). In rendering a decision on appeal the Board must also 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. 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis The Veteran submitted an initial claim for service connection for migraine headaches in February 2009. During his June 2012 Board hearing, the Veteran testified that he was first seen for headaches in service beginning in 1974 and that he was given aspirin in service. He indicated that he was later prescribed something heavier, and that he had recurring headaches for some time. The Veteran reported that he currently receives treatment for headaches from his VA primary care provider, that the headaches come and go, and that he is given pills for these headaches. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence does not establish that the Veteran has a currently diagnosed headache disability that is etiologically related to service. The Board finds that the weight of the evidence does not demonstrate that the Veteran had symptoms related to headaches in service, or since service separation. Service treatment records do not reflect any treatment, diagnoses, or complaints referable to headaches at any time in service. A January 1976 separation examination report, similarly, does not reflect any treatment, diagnoses, or complaints related to headaches in service. The Board finds that the separation examination provides probative, contemporaneous evidence with regard to the Veteran's physical state at the time of his separation from service. The Board finds that the absence of complaints shown in service treatment records provides probative evidence which weighs against the credibility of the Veteran's more recent hearing testimony, in which he asserts that he was treated on multiple occasions in service for headaches, and was given aspirin and other medication for these headaches. Service treatment records appear complete and reflect treatment for other minor complaints in service, such as treatment for a blister on the bottom of the foot and for multiple complaints related to pseudofolliculitis barbae due to shaving; therefore, the Board finds that, had the Veteran received treatment for headaches in service, that such treatment would have been indicated in service treatment records. Accordingly, the Board finds that the weight of the evidence shows that the Veteran did not exhibit symptoms or disability related to headaches in service. The Board finds that the Veteran did not have symptoms of related to headaches after service separation and medical evidence of record does not establish a currently diagnosed chronic disability related to claimed migraine headaches. While the Veteran has testified that he receives current treatment for headaches through his VA primary care physician, current VA treatment records do not reflect any treatment, diagnoses, or complaints related to claimed headaches. A November 2008 VA primary care, initial evaluation shows that the Veteran denied having frequent headaches. VA treatment records show that headaches were not indicated under the Veteran's past medical history or active problem list. Finally, aside from the Veteran's own lay assertions, there is no evidence of record which indicates that the claimed headaches or migraine headaches are related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and a disability such as migraine headaches or chronic headaches are manifested by symptoms identifiable by a lay person, the Board finds that the Veteran has not credibly reported either the occurrence of a chronic headache disability in service, or post-service. Thus, the Board finds that his statements relating current headaches to service are not credible. Absent credible evidence of headaches in service, medical evidence of treatment or complaints of headaches for over 30 years post-service, or even current evidence which identifies a current chronic disability related to claimed headaches, the Board finds that the weight of the evidence is against the claim for service connection. For these reasons, the Board finds that the weight of competent, credible, and probative evidence of record shows that a disability, claimed as headaches or migraine headaches, was not incurred in service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for migraine headaches is denied. REMAND During the June 2012 Travel Board hearing, the Veteran indicated that he was in receipt of SSA disability benefits. He stated that a claim for SSA benefits was granted in 2009, and that these benefits, in part, were due to his service-connected knee disability. SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992) (concluding VA has a duty to obtain SSA records when it has actual notice that the veteran was receiving SSA benefits); see also Collier v. Derwinski, 1 Vet. App. 413 (1991); Brown v. Derwinski, 2 Vet. App. 444 (1992). Because the Board has received actual notice that the Veteran is in receipt of SSA disability benefits since 2009, based in part on his claimed knee disability, the Board finds that a remand for all medical records held by SSA is necessary. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). During the June 2012 Travel Board hearing, the Veteran testified that his service-connected knee disability has gotten worse since his most recent VA examination in June 2011. In light of the foregoing, the Board finds that a remand for an updated VA examination is necessary to address the current severity of service-connected right knee degenerative joint disease with valgus instability. During the Veteran's Board hearing, he identified continuing treatment for the right knee at the East Orange VA Medical Center in New Jersey. The RO/AMC should obtain updated VA medical records on remand. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request, from the SSA all records pertinent to the Veteran's claim for Social Security disability benefits as well as medical records relied upon concerning that claim. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the record. 2. The RO/AMC should obtain any updated VA treatment records dated from May 2011 to the present from the East Orange VA Medical Center in New Jersey, and should associate them with the record. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the record. 3. The Veteran should be afforded a VA orthopedic examination to determine the current severity of the service-connected right knee degenerative joint disease with vargus instability. The claims file must be made available to the examiner for review. The VA examiner must review any additional evidence associated with the record. All indicated tests, including range of motion testing, should be performed and the findings reported in detail. The examiner should determine whether the knee disability is manifested by painful motion, weakened movement, excess fatigability or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. The examiner should report whether there is subluxation or lateral instability of the right knee, and if present, indicate whether it is slight, moderate, or severe. 3. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs