Citation Nr: 1312192 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 07-37 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In pertinent part, the Veteran's appeal was remanded by the Board in September 2011 so that a VA examination could be conducted with respect to his claim for service connection for a headache disability; and so that an additional supplemental statement of the case could be issued. A VA examination was conducted in January 2012 and the additional supplemental statement of the case was issued in July 2012. Accordingly, the Board finds that with respect to the Veteran's claim for service connection for a headache disability, there has been substantial compliance with the directives of the September 2011 remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at an August 2011 Board hearing before a Veterans Law Judge (VLJ) by videoconference from the RO. A transcript of that hearing is associated with the claims file. After the Board's September 2011 remand, and recertification the appeal to the Board in August 2012, an August 2012 letter notified the Veteran that the VLJ who conducted his August 2011 hearing was no longer employed by the Board, and asked him if he desired an additional hearing by the VLJ who would decide his case. He was informed that if the Board did not receive a response to that notification within 30 days, it would presume he did not want an additional hearing. No response was received; accordingly, the Board will proceed with appellate review. The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's service treatment records reflect that he reported experiencing headaches in August 1972, September 1972, and March 1973; his November 1973 service separation examination noted that the Veteran reported occasional severe headaches. 2. The evidence relates the Veteran's currently diagnosed headache disability to his military service. CONCLUSION OF LAW The criteria for service connection for a headache disability have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Veteran's service treatment records reflect that he reported experiencing headaches in August 1972, September 1972, and March 1973; his November 1973 service separation examination noted that the Veteran reported occasional severe headaches. After service, the Veteran sought treatment for his headaches in January 2006 when they became more severe and more frequent; chronic headaches were also reported by the Veteran intermittently in VA treatment records dated from February 2006 to October 2009. At the January 2012 VA examination, the VA examiner noted a diagnosis of chronic headaches, and the Veteran's report that they had begun in 1970 and had continued through the post-service period, treated only by over-the-counter Advil. The examiner determined that it was less likely than not related to the Veteran's military service; the rationale cited to the lack of documented treatment for headaches in the Veteran's service treatment records, and the lack of documented treatment for headaches in the post-service period until a February 2006 VA evaluation for headaches. After consideration of the record, the Board finds that the evidence establishes a nexus between the Veteran's headaches and his military service. As noted above, the Veteran reported experiencing headaches in service, to include at his service separation examination, and reported them at various times at VA outpatient visits between January 2006 and December 2009. Although the record reflects that the Veteran was treated for other conditions between May 2001 and January 2006, but did not report experiencing headaches, this does not necessary mean that he did not experience them at that time. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lack of contemporaneous documentation does not rule out the possibility that such symptomatology existed). Indeed, the existence, frequency, and severity of headaches are uniquely ascertainable by the senses, and lay assertions as such symptoms are especially probative. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Further, and perhaps more critically, these records do not reflect that the Veteran denied experiencing headaches. Conversely, the VA examiner's opinion that the Veteran's headache disability was not related to service on the basis of a lack of documented treatment for headaches in the Veteran's service treatment records, and the lack of documented treatment for headaches in the post-service period until a February 2006 VA evaluation for headaches, is not probative. There are at least three documented reports of headaches noted in the service treatment records, as enumerated above, in addition to the service separation examination which specifically indicates that the Veteran may have experienced headaches on additional occasions but not sought treatment for them. Further, the credibility of the Veteran's lay statements, especially probative in cases concerning headaches, has not been called into question by any remaining evidence of record, and cannot be discounted solely because there is no contemporaneous evidence to support those assertions. See Washington. Ultimately, the Board finds the Veteran's assertions as to his headaches credible, and further concludes the January 2012 VA examiner's opinion is not probative because it is considers the lack of evidence between service separation and the first documented complaint of headaches in the post-service period as negative evidence, not non-evidence. On this basis, service connection for a headache disability is warranted. ORDER Service connection for a headache disability is granted. REMAND The Veteran served in Thailand during service and he also reports setting foot in the Republic of Vietnam. In the September 2011 remand, the Board directed the RO to solicit from the Veteran a statement detailing his in-service stressors, and further, that if any of the stressors could be verified, to schedule the Veteran for a VA examination. Because the Veteran did not respond to the RO's September 2011 and November 2011 letters, no VA examination was conducted. However, the record also reflects other acquired psychiatric diagnoses, to include depressive disorder, anxiety disorder, and agoraphobia, but does not address whether any of these diagnoses resulted from the Veteran's in-service experiences as detailed in his August 2011 Board hearing testimony. Remand is required so that a VA examination can be conducted. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disability is REMANDED for the following actions: 1. After physically or electronically associating any pertinent, outstanding records with the claims file, schedule the Veteran for a VA examination with a VA examiner having experience in diagnosing acquired psychiatric disabilities. After review of the record and examination of the Veteran, using whatever tests are appropriate, the examiner should state whether it is at least as likely as not that any diagnosed psychiatric disability is related to or had its onset in service. A diagnosis of PTSD must be ruled in or excluded. 2. Readjudicate the Veteran's claim. In doing so, the RO must specifically consider 38 C.F.R. § 3.304(f)(3) (2012). If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs