Citation Nr: 1312604 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 98-06 513A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cephalgia (headaches), to include as due to an undiagnosed illness and as secondary to service-connected disabilities. 2. Entitlement to service connection for syncopal episodes (claimed as seizures), to include as due to an undiagnosed illness and as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1979 to June 1992. His service records reflect service in Southwest Asia during Operation Desert Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following an August 2004 video conference hearing, the case was remanded in January 2005, August 2009, and April 2012. The Board has reviewed the records contained on Virtual VA in adjudicating this appeal. These include extensive recent VA treatment records, dated through May 2012. However, the information contained therein is not relevant to the one service connection claim for which the Board has reached a favorable determination in this case, and no further discussion of such records is necessary. In April 2012, the Board referred the issue of entitlement to a total disability evaluation based upon individual unemployability (TDIU) to the Agency of Original Jurisdiction (AOJ). A May 2012 rating decision indicates that this issue was deferred on account of the issuance of a 38 C.F.R. § 3.159(b) notice letter. It does not appear that the issue has been adjudicated to date. Therefore, the Board does not have jurisdiction over the TDIU issue, and it is again referred to the AOJ for appropriate action, if not already accomplished. The issue of entitlement to service connection for syncopal episodes (claimed as seizures) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has chronic headaches that have not been clearly attributed to a known clinical diagnosis (e.g., migraine); they essentially constitute a medically unexplained chronic multisymptom illness subject to the provisions of 38 C.F.R. § 3.317. CONCLUSION OF LAW The criteria for service connection for cephalgia (headaches) as due to an undiagnosed illness have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In the current appeal, the Board has considered whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's fully favorable disposition of the matter on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including organic neurological disorders (e.g., migraine), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran has presented two further theories of service connection in this case. First, service connection may be granted on a secondary basis for a disability that is proximately caused or aggravated by a service-connected disease or injury. Compensation for secondary service connection based on aggravation of a nonservice-connected condition is warranted for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective October 10, 2006. While the stated intent of this change was to implement the requirements set forth in Allen, the amendment amounts to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Here, the Veteran's claim was received in 1996, prior to the effective date of the amendment. Therefore, the Board will apply the prior version of 38 C.F.R. § 3.310, which does not require the establishment of a baseline level of disability before an award of service connection may be granted, as such version is more favorable to the Veteran. Second, service connection may also be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from an undiagnosed illness, or such unexplained multisymptom illnesses defined by a cluster of signs or symptoms as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a)(5). A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(6). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran's service treatment records reflect multiple complains of headaches, including in March 1983, August 1985, September 1985, December 1989 ("frequent headaches"), and October 1990 ("pounding" headaches). His March 1992 separation examination report contains no notations of headaches, however, and the corresponding Report of Medical History reflects that he denied frequent or severe headaches. Subsequent to service, the Veteran began frequent VA treatment for headaches in May 1996, on several occasions. A May 1996 CT scan of the head/brain was negative for abnormalities. A July 1996 VA general medical examination report indicates complaints of frequent headaches, usually left frontal, parietal, and occipital. A diagnosis of cephalgia was rendered. Further treatment records indicate intermittent headaches in August 1996 and severe headaches in March 1997. In June 1997, the Veteran reported daily headaches across the forehead and top of the head for the past one to 1.5 years that had gotten worse since his back had been more painful. Constant throbbing left frontal headaches radiating to the left occipital area and dating back to the Gulf War were noted in July 1997. An August 1997 VA neurological examination report indicates that the Veteran complained of headaches, but they seemed to be stress headaches, with no component of migraine headaches (e.g., visual loss, aura). A February 2000 VA Gulf War Guidelines report reflects that the examiner noted that the Veteran had headaches and "was diagnosed as having migraine headaches, and has been on Imitrex pills." A September 2000 VA Gulf War progress medical note reflects that the Veteran had daily headaches, "with or without corresponding sinus problems." A July 2001 VA Gulf War progress medical note indicates that the Veteran's headaches did feel dulled with the current use of neurontin. A January 2002 VA neurology progress note contains an assessment of headache. In September 2002, the Veteran reported headaches in the frontal areas and felt that this may be due to sinus problems; the examiner assessed headache, "[b]elieve this is due to sinus pressure due to allergies." An April 2003 VA allergy progress note indicates that the Veteran reported a history of migraines. During a surgical consult in August 2003, the Veteran reported daily headaches and indicated that they were in the forehead and infraorbital area bilaterally and that he was taking Tylenol on a regular basis. Complaints of headaches were also noted in October 2003. During his August 2004 video conference hearing, the Veteran reported daily headaches and described current use of Tylenol and aspirin. He noted that the headaches started probably one year after service and had a lot to do "with the stress and all-and not being able to do what I should do." Subsequently, in December 2005, the Veteran reported pain over the top and back of the head, with headaches for many years (since 1995). He later complained of headaches during VA treatment in August 2006. In May 2012, the Veteran underwent a VA Gulf War general medical examination, with an examiner who reviewed the claims file. A portion of this examination addressed headaches. The examination report indicates that the Veteran reported developing headaches approximately three years prior to separation, and he had intermittent headaches for the past 23 years. The headaches were noted to occur sporadically, typically lasting one hour. They were occipital and occasionally bifrontal and occurred randomly, with stress or being in the heat. Medications (Ultram and Tylenol) were taken for the headaches. Changes in vision were noted, but there were no characteristic prostrating attacks of migraine headache pain. The Veteran reported quitting his job as an electrician because of headaches. The medical opinion provided by the examiner as to headaches has some internal inconsistencies. The examiner initially stated that there was "no current evidence" of headaches. Also, the examiner noted that there were no complaints of headaches since 2003. However, the examiner also indicated that the Veteran did complain of headaches, and his headaches were consistent with a mixed headache. The examiner described the headaches as a "diagnosed" illness and not part of a medically unexplained chronic multisymptom illness. The examiner separately found that the headaches were not related to, nor aggravated by, military service, as service treatment records were absent for "these conditions or events" that would have aggravated these conditions beyond normal progression. The examiner also determined that the headaches and seizure disorder were not aggravated by, or caused by, the Veteran's allergic rhinitis, lumbar disc disease, irritable bowel syndrome, or renal calculi "as there is no association," and the service-connected disabilities were not etiologic factors for mixed headaches. Finally, the examiner found that the Veteran's headaches were not secondary to, or aggravated by, his seizures. The Board notes that several aspects of the VA examiner's opinion are factually incorrect. First, the Veteran was treated at a VA facility for headaches in 2005 and 2006, so it would be inaccurate to say that there were no complaints of headaches since 2003. Second, the Veteran was treated multiple times for headaches during service, and the examiner failed to note these instances of treatment in his opinion. Beyond that, the Board is unable to concur with the examiner's conclusions about the chronic nature of the Veteran's headaches, or the finding as to a diagnosed condition in terms of 38 C.F.R. § 3.317. The Veteran has consistently described ongoing headache symptomatology of varying dates of onset, but at least since the mid-1990s. His VA treatment records show very frequent treatment for headaches, particularly between 1996 and 2003 - during the pendency of this appeal - and the Board finds that the Veteran's headaches meet the 38 C.F.R. § 3.317(a)(4) definition of "chronic." Furthermore, while there are some VA medical reports suggesting a migraine or sinus component to the headaches, neither known clinical diagnosis is fully substantiated by the record, and the Board notes that the description of "mixed" headaches from the May 2012 VA examination report is not inconsistent with a finding of "signs or symptoms" of headaches as contemplated by 38 C.F.R. § 3.317(b). Rather, the largely unclear nature of the Veteran's chronic headaches warrants the application of 38 C.F.R. § 3.317. On balance, the Board finds that the Veteran currently has headaches and that, given the frequent nature of his treatment for headaches subsequent to service, these headaches are chronic in nature. The Board is aware of VA treatment records raising the possibility that the headaches could be of a migraine or sinus origin, but these records are not conclusive as to a known clinical diagnosis that causes his headaches. Given this, the Board finds that his chronic headaches have not been clearly attributed to a known clinical diagnosis and essentially constitute a medically unexplained chronic multisymptom illness, as contemplated by 38 C.F.R. § 3.317. Indeed, headaches are among the signs or symptoms of an undiagnosed illness listed in 38 C.F.R. § 3.317(b). For this reason, the Board finds that service connection for cephalgia (headaches) is warranted on an undiagnosed illness basis under 38 C.F.R. § 3.317. The claim is thus granted in full. ORDER Service connection for cephalgia (headaches) as due to an undiagnosed illness is granted. REMAND While the Board regrets further delay on the Veteran's claim for service connection for syncopal episodes (claimed as seizures), this claim requires further development in two significant respects. First, the record (in Virtual VA) contains VA treatment records from the Bay Pines, Florida VA Medical Center (VAMC) and the Bradenton, Florida Community Based Outpatient Clinic (CBOC), dated through May 29, 2012 and received on May 31, 2012. The Veteran's November 2012 Supplemental Statement of the Case, however, indicates a review of records from the Bay Pines VAMC dated through October 19, 2012. This discrepancy reflects that there exist potentially relevant VA treatment records that have not added to the claims file (including Virtual VA) to date. Such records must be obtained prior to further Board action on this claim. 38 C.F.R. § 3.159(c)(2). Second, the Board has considered the adequacy of the aforementioned May 2012 VA examination report insofar as the claim for service connection for syncopal episodes/seizures is concerned. In its April 2012 remand, the Board requested that the examiner address: 1) whether there is a current diagnosis for seizures or syncopal episodes during the course of the appeal (or since 1996), 2) whether the seizures/syncopal episodes were due to a "medically unexplained chronic multisymptom illness" as contemplated by 38 C.F.R. § 3.317, and 3) whether any diagnosed disabilities were incurred or aggravated by service or a service-connected disability. The Board has considered whether the prior remand instructions were addressed in full and finds the May 2012 VA examination report to be insufficient in several respects. First, while the examiner quite emphatically noted no current evidence or complaint of a seizure disorder, he did not specify whether syncope episodes/seizures noted in the record (particularly between 1996 and 2002) constituted a chronic disorder, albeit now resolved. The Veteran's earlier treatment for syncope episodes and seizures was concurrent with the pendency of this appeal, and several of these records (e.g., a January 2002 VA neurology progress note containing an assessment of a possible partial seizure disorder, a September 2002 VA progress note containing an assessment of seizures) certainly raise the question of a chronic disorder during that time. Even if that disorder had resolved, its etiology must be addressed. See McClain v. Nicholson, 21 Vet App 319 (2007) (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim; under such circumstances, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings). Second, the examiner went on to state that the Veteran's "seizure disorder" was not related to or aggravated by service and was not caused or aggravated by the Veteran's service-connected allergic rhinitis, lumbar disc disease, intervertebral disc syndrome, or renal calculi. However, this opinion as to secondary service connection is fairly conclusory ("[t]he patient's service[-]connected disabilities are not etiologic factors for mixed headaches and seizure disorder"). Of further concern is that this opinion only addresses four of the Veteran's service-connected disabilities; he is also service connected for posttraumatic stress disorder (PTSD), bilateral radiculopathy associated with a herniated nucleus pulposus of L5-S1, multiple joint arthralgias due to undiagnosed illness, and condyloma acuminate with HSV II. Moreover, service connection has now been established for cephalgia (headaches), and the examiner's comment that "[h]eadaches are not an etiology for seizures" is also conclusory. Consequently, a further VA examination is needed to address the nature and etiology of the Veteran's claimed syncope episodes/seizures. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be furnished with a 38 C.F.R. § 3.159(b) letter addressing his claim for service connection for syncopal episodes (claimed as seizures), to include as due to an undiagnosed illness and as secondary to service-connected disabilities. This letter must address both 38 C.F.R. §§ 3.310 and 3.317, as these are alternate theories of the Veteran's claim. The Veteran must be requested to provide information (and signed release forms, as needed) as to recent VA and non-VA treatment for syncopal episodes/seizures. 2. The RO must then request all treatment records of the Veteran from the VA Bay Pines health care system, including from the Bay Pines VAMC and the Bradenton CBOC. All records obtained pursuant to this request must be added to the claims file. If the search for such records has negative results, this fact must be documented in the claims file. 3. The Veteran must then be provided with a VA neurological examination, with an examiner who has reviewed the claims file (including relevant Virtual VA records). The examiner must address the following: A) Does the Veteran have a current and chronic disability consisting of syncopal episodes or seizures? If not, does the evidence of record (specifically, VA treatment records between 1996 and 2002) indicate a previously chronic disability, now resolved? B) If a chronic disability is found, either currently or previously during the pendency of this appeal, please provide an opinion as to whether such disability is attributable to a known clinical diagnosis (e.g., epilepsy) or a "medically unexplained chronic multisymptom illness," as contemplated by 38 C.F.R. § 3.317. C) For any known clinical diagnosis, either current in nature or previously diagnosed but resolved during the pendency of the appeal, please provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such diagnosis is (or was, if resolved) etiologically related to service. D) If the answer to (C) is negative, please provide an opinion as to whether it is at least as likely as not that the diagnosed disability was caused or aggravated by a service-connected disability. In this regard, the examiner is reminded that the Veteran's service-connected disabilities include PTSD, a herniated nucleus pulposus of L5-S1, bilateral radiculopathy associated with a herniated nucleus pulposus of L5-S1, multiple joint arthralgias due to undiagnosed illness, irritable bowel syndrome, renal lithiasis, allergic rhinitis, condyloma acuminate with HSV II, and cephalgia (headaches). All opinions must be supported by a complete rationale in a typewritten report. 4. Then, the claim for service connection for syncopal episodes (claimed as seizures), to include as due to an undiagnosed illness and as secondary to service-connected disabilities, must be readjudicated. If this determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs