Citation Nr: 1312994 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-40 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for residuals of a spinal tap. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from November 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2002 and September 2004 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. In September 2011, the Veteran appeared at a Board hearing held at the RO (i.e., Travel Board hearing); a copy of the transcript has been associated with the claims file. In February 2012, the Board denied service connection for prostate cancer and diabetes mellitus and remanded the remaining issue for further development. In that decision, the Board also waived the timeliness of filing the substantive appeal. Therefore, the May 2002 rating decision remained open and new and material evidence was not required. 38 C.F.R. §§ 20.302, 20.303 (2012). A November 2012 rating decision granted service connection for migraines and assigned a noncompensable rating, effective May 1, 2000. As this represents a full grant of the issue on appeal, this issue is no longer on appeal. FINDING OF FACT The Veteran did not have a spinal tap in service, nor does he have any current residuals of a spinal tap. CONCLUSION OF LAW The criteria for service connection for residuals of a spinal tap have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In letters dated in October 2001 and October 2003, the RO advised the claimant of the information necessary to substantiate the claim for service connection for diabetes mellitus, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the October 2003 notice referred to the need to submit new and material evidence, the notice also discussed the evidence needed to prevail on the merits, and the Veteran's contentions have focused on the merits of his claim. In a letter dated in November 2010, he was provided with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Hence, the VCAA notice requirements have been satisfied. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. With respect to the duty to assist, service treatment and personnel records, VA treatment records, and identified private medical records have been obtained. A VA medical examination is not warranted because, as discussed below, there is no credible evidence establishing that a spinal tap or other related event, injury, or disease occurred in service or a credible indication that the Veteran has any current residuals of a spinal tap that may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally in this regard, during the September 2011 Board hearing, the undersigned explained the issue on appeal and asked questions designed to indicate evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In February 2012, the Board remanded the claim to obtain treatment records from the VA Readjustment Counseling Service and/or Vet Center at Gardena, California, as well as from the Culver City Vet Center. Such treatment records were associated with the Veteran's claims file and the claim was subsequently readjudicated in a November 2012 supplemental statement of the case. The Appeals Management Center thereby complied with these remand instructions. Cf. Stegall v. West, 11 Vet App 268 (1998). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria & Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may 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) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Lay statements may serve to 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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. The appellant 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 appellant). The Veteran contends that he has current residuals of an in-service spinal tap. He indicated that a spinal tap was performed due to his headaches, after which his headaches increased in severity. See July 2007 VA treatment record and September 2011 hearing transcript. A November 2012 rating decision granted service connection for migraine headaches based on intermittent headaches documented both in and out of service as well as a relationship shown to exist between the Veteran's migraine headaches and the service-connected PTSD. The November 2012 rating decision did not address whether the Veteran's migraine headaches were residuals of a spinal tap. The Board notes that the issues regarding migraine headaches and residuals of spinal tap have been treated as two separate issues during the pendency of the appeal. As the issue of service connection for migraine headaches has been established, this issue is no longer on appeal. The remaining issue, as subsequently addressed in a November 2012 supplemental statement of the case, is service connection for residuals of a spinal tap. January 2013 correspondence from the Veteran's representative further indicates the desire to continue to appeal this issue. After reviewing the evidence pertaining to this claim, the Board concludes that service connection for residuals of a spinal tap is not warranted. The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). 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. In determining credibility, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Concerning the probative value of the Veteran's lay statements, the Board notes that in his May 2000 Formal Claim, he reported that he had had a spinal tap in November 1963. VA treatment records beginning in July 2000 include the Veteran's reported history of having headaches since his discharge from service that worsened after a spinal tap in the 1960s. During his September 2011 Board hearing, he reported that he had had a spinal tap in February 1964. The Board finds the inconsistencies in his statements call in to question his credibility. Additionally, the Veteran's service treatment records, including March 1966 Reports of Medical History and Examination, are negative for any complaints, treatment, or diagnoses, relating to a spinal tap or residuals thereof. At the time of separation the spine and neurologic clinical evaluation was normal. In March 1962, the Veteran reported that he hurt his neck and spine after physical training. He reported that he had x-rays taken by a civilian doctor. After a physical examination, the impression was no neurological disease. In October 1962, he had chronic cervical muscle spasm and muscular headache. He was prescribed intermittent cervical traction with heat and Darvotran. Although post-service treatment records reported a history provided by the Veteran that his headache disability worsened after he had his spinal tap in service, there is no reliable evidence that the Veteran had a spinal tap in service. See 38 C.F.R. § 3.303. VA treatment records beginning in July 2000 include the Veteran's reported history of having headaches since his discharge from service that worsened after a spinal tap in the 1960s. He indicated that the spinal tap was done due to his headaches. The file also contains several letters, beginning in May 2001, from R.B., Ph.D., who was a readjustment counselor at a VA facility. Although these letters have different dates, the content is nearly identical. As pertinent to the claim on appeal, it was stated that the Veteran had migraines as a symptom of PTSD. Beginning in November 2004, Dr. R.B. letters noted that as a symptom of PTSD, "[m]igraine headaches begin after leaving boot camp in him having a spinal [sic]." These statements, however, lack probative value because they are based on an inaccurate factual history-a history that is not corroborated by the contemporaneous clinical records in the file. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional). Notably, there is nothing in the record during service or until the Veteran filed his claim in May 2001, more than 35 years after his discharge from service, indicating that he had had a spinal tap in service. Therefore, upon consideration of all of the above, the Board finds that the silent service treatment records, the normal separation examination, the lapse of time between service and the Veteran's assertion that he had residuals of a spinal tap in service, as well as the inconsistencies in his reports of when he had the spinal tap in service leads to a finding that the Veteran's assertions of having a spinal tap in service are not credible. In view of the foregoing, the Board concludes that the Veteran did not have a spinal tap in service. Furthermore, the Board acknowledges that the Veteran had complaints of headaches that were aggravated while he was in service by an in-service spinal tap; however, the Veteran's migraine headaches are already service connected on a basis unrelated to the alleged spinal tap in service. The Veteran has not identified any specific current symptoms in addition to his already service-connected headaches. Overall, there is no competent and credible evidence of any current residuals of a spinal tap and there is no competent and credible evidence that his current headaches are a residual of a spinal tap. In the absence of proof of a present disability or residuals thereof (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). For the forgoing reasons, the Board concludes that the preponderance of the evidence is against the claim and service connection for residuals of a spinal tap must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). ORDER Entitlement to service connection for residuals of a spinal tap is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs