Citation Nr: 1313112 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-44 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for headaches, claimed as migraines. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (depression), claimed as secondary to the service-connected disability of herniated nucleus pulpous lumbosacral spine at L5-S1 (low back disability). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1973 to August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). A hearing was scheduled for March 2011; however, in March 2011 correspondence from the Veteran, he requested that the hearing be cancelled and a decision be made on the record. The Board recognizes that the Veteran submitted separate claims for service connection for PTSD and depression. However, under current VA law, claims for service connection for one psychiatric disorder effectively encompass claims for service connection for all such disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (directing that claims based on multiple mental health conditions are to be construed as a single claim for an acquired psychiatric disorder). Accordingly, the Board finds that the Veteran's psychiatric claims are more appropriately construed as a single issue, as reflected on the title page. The issue of service connection for an acquired psychiatric disorder, to include PTSD and depression, is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A chronic headache disability was not manifested in service; his current headache disability is not shown to be related to his service/headache complaints noted therein. CONCLUSION OF LAW Service connection for a headache disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in pertinent part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his headache claim prior to its initial adjudication. An October 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record; he has not alleged that notice in this case was less than adequate. Accordingly, the Board finds that no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). With respect to the duty to assist, the Board observes that the Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for a VA examination in March 2010. The examination report is adequate for rating purposes, as it reflects that the examiner had familiarity with all factual data, includes all necessary findings, and includes an explanation of rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will now address the merits of the Veteran's headaches claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be medical evidence of a current claimed disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the disease or injury in service and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's June 1973 entrance examination and report of medical history was negative for any complaints, treatment, or diagnoses for headaches. Subsequent STRs reflect that, in September 1977, he was seen complaining of worsening headaches following a car accident 5-6 days prior. In April 1984, the Veteran was seen complaining of a head cold, stuffy nose, burning eyes, and a headache. In May 1988 and May 1997 reports of medical history, the Veteran noted frequent or severe headaches. However, a May 1988 examination was normal, noting no problems or complaints with the Veteran's head. A February 1995 periodic medical examination was also normal with no complaints or treatment relating to headaches. The Veteran's May 1997 retirement examination was also negative for treatment, complaints, or diagnosis of headaches. Postservice treatment records show a September 2009 complaint of migraine headaches. The assessment was headache, possibly secondary to diagnosed occipital neuralgia. During a March 2010 optometry appointment, the Veteran reported waking up with blurry vision and shooting pain his right temple. The Veteran stated he had a slight headache that morning, which happens often. In a March 2010 primary care appointment, the Veteran was prescribed Fiorinal for his headaches. The Veteran was afforded a VA examination in March 2010. He reported developing headaches in the 1980s, but stated that because of his position in the military, he did not attend sick call for the headaches and did not have a formal record made of the fact that he had headaches. He reported currently having headaches about twice a month and indicated that they were mostly on the right side of his head with a sharp pain and associated with blurring of vision. He stated that he took Tylenol for pain relief. In addition, the Veteran reported that he had sleep apnea and that if he did not use his CPAP machine, he developed headaches when he woke up in the morning that persisted throughout the day. An examination revealed an alert man with no language disturbance and no dementia. His cranial nerves, motor system, sensory and reflexes were normal. The examiner provided a diagnosis of headaches, nonspecific in nature, lacking sufficient criteria for classification as migraines and lacking specific criteria for diagnosis as a tension-type headache. The examiner noted that he did not have the Veteran's claims folder available for review, but stated that considering the information he did have before him, it was less likely than not that his headaches are caused by or the result of his military service. The examiner noted that he examined this Veteran for another issue 3 years prior and the Veteran did not mention headaches during that exam, and further that the Veteran's retirement examination did not document any headaches. An addendum opinion was provided in April 2010 once the claims folder was made available for review by the examiner. The examiner noted a review of the Veteran's STRs, to include where the Veteran reported chronic severe headaches, and two notations of a complaint of headaches in the STRs. The examiner also reviewed post-service records, noting that the Veteran has seen neurologists and general medical examiners on several occasions and there has been no mention of headaches. The examiner stated that there was a note of "migraine headaches undiagnosed" in response to the Veteran's report of a history of migraines; however, the examiner stated it is unclear to him what this means. He stated that what is clear was that the Veteran did not seek recurrent treatment for headaches and was never on medication for a substantial complaint of headaches. The examiner noted that the Veteran did have problems with pulmonary function, and more recently his headaches have been related more to his complaints of pulmonary function than to any separate diagnosis of migraines. Thus, the examiner opined that there was no evidence that this Veteran had a diagnosis of migraines during service, and that it was less likely than not that any headaches he currently experienced were related to his military service. Rather, the examiner determined that the more likely cause of the Veteran's headaches were the coronary function disturbances related to sleep apnea. The Board notes that although the Veteran is claiming service connection for migraines, there is no evidence of a migraine diagnosis. While a May 1988 STR noted "migraine headaches undiagnosed" following the Veteran's report of frequent or severe headaches, the Board finds that this notation alone is not indicative of a migraine headache diagnosis. However, the Veteran has been diagnosed with headaches, including on VA examination in March 2010. Thus an analysis pertaining to headaches will follow. The Board acknowledges that the Veteran is competent to observe whether or not he has or has had headaches. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, while mindful that his current assertions are not corroborated by STRs, the Board observes that the mere absence of contemporaneous clinical evidence does not render his account of in-service and post-service headache symptoms inherently incredible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Nevertheless, the Board still has reason to question the credibility of the Veteran's current assertions as they are inconsistent with his own prior statements. Specifically, when the Veteran was examined by both neurologists and general practitioners prior to filing the claim at issue, he did not complain of any headache symptoms and none were clinically shown. See Pond v. West, 12 Vet. App. 341 (1999). The Board considers the lay history inherent in these earlier examination reports to be more probative than the Veteran's current statements, which were rendered solely in the interest of seeking VA benefits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). Consequently, the Board finds that those current assertions are insufficient to show that the Veteran has experienced continuous headache symptoms dating back to his active service. What remains for consideration is whether or not in the absence of a showing of onset in service and continuity since, the headaches may somehow otherwise be related to the Veteran's service. That is a medical question, and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed., Cir. 2007). The Veteran is not shown to have any medical expertise, and he has not presented any medical opinion/textual evidence in support of his claim; his own opinion in this matter is not competent evidence. The only competent evidence in the record regarding a nexus between the Veteran's headache disability and his service is the April 2010 VA examiner's opinion that the current headache disability is unrelated to the complaints in service. The examiner explained the rationale for the opinion, citing to factual evidence that shows that the Veteran's complaints/episodes in service were more likely than not indicative of transient problems, as he did not seek recurrent treatment or continuous medications for such headaches, and further that the Veteran's current headaches are more likely related to coronary function disturbances related to sleep apnea. Because the examiner expressed familiarity with the record, and cited to supporting factual data, his opinion is probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Moreover, the persuasiveness of that opinion is compounded by the lack of any competent evidence to the contrary. In this regard, the Board observes that it may not substitute its own unsubstantiated conclusions for those of the VA examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, while highly sympathetic to the Veteran's claim for service connection for headaches, the Board finds that the preponderance of the overall evidence of record weighs against that claim. As such, the benefit of the doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). ORDER Service connection for a headache disability is denied. REMAND Although the Board regrets the additional delay, further development is warranted prior to the final disposition of the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and depression. First, the Board observes that during the pendency of this appeal, VA amended its regulatory provisions governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing a claimed in-service stressor. The amendments, which took effect July 13, 2010, redesignated current paragraphs (f)(3) and (f)(4) of 38 C.F.R. § 3.304(f) as paragraphs (f)(4) and (f)(5), respectively, and added a new paragraph (f)(3) that states (with added emphasis): If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire; including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. In this case, the Veteran does not appear to have been furnished with VCAA notice with respect to the PTSD amendments regarding hostile military and terrorist activity. 38 C.F.R. §§ 3.304(f)(3) (2012). The Board acknowledges that the Veteran's claimed in-service stressors are mainly concerned with peacetime activity. However, in light of his assertions of acquiring PTSD based upon his interactions with other Vietnam-era veterans, the Board finds that his claim may be at least tangentially related to the revised regulatory provisions. As such, the Veteran should be provided with proper VCAA notice of those provisions. The Board is also of the opinion that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 .F.R. § 3.159. VA treatment records reflect an Axis I diagnosis of PTSD rendered in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Additionally, the Veteran has submitted statements in September 2009 describing two claimed stressors. In a January 2010 memorandum, the RO determined that the information submitted was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of National Archives records. In support of this decision, the RO stated that the Veteran reported living and working with Vietnam veterans that suffered from PTSD like symptoms, and that such report is not valid for further research. Secondly, it was stated that the Veteran reported witnessing the remains of a soldier that was shot and killed by another soldier. The RO stated that this implies that he did not personally witness the shooting and further, that research conducted on the Access to Archival Databases (AAD) from the National Archives was negative for such information provided. In a June 2011 informal hearing presentation from the Veteran's representative, the representative provided a statement indicating that the Veteran did in fact witness the murder of a fellow soldier and provided information as to where this incident took place. Accordingly, further development to verify these alleged stressor events, specifically the incident of witnessing the death of another soldier, is necessary. Notably, the JSRRC has advised they can only research stressful events if there are several items of specific information, including the Veteran's claim number and/or Social Security number, a two-month specific date range for when the stressful event occurred, the Veteran's unit of assignment during the stressful event, and the geographic location where the stressful event occurred. VA treatment records also reflect an Axis I diagnosis of major depression under the DSM-IV. The Veteran has claimed that he currently suffers depression as secondary to his service-connected back disability. The Veteran has not been afforded a VA examination for depression. Under 38 C.F.R. § 3.159(c)(4), an examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that the requirement that there be evidence of a possible nexus is "low threshold" requirement. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the record shows that the Veteran has depression, and he has indicated that such depression is related to a service-connected disability, the "low threshold" standard is met; a VA nexus examination is necessary. That examination should also consider whether the Veteran's diagnosed PTSD is predicated on any in-service stressors that are verified pursuant to this remand. Finally, the Board observes that pertinent VA medical records may be outstanding. A review of the Veteran's paper claims file and Virtual VA efolder reflects that he was receiving ongoing mental health treatment at his local VA Medical Center through June 18, 2010. However, no subsequent VA treatment reports are currently of record. Accordingly, such reports should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice that provides notification regarding the evidence needed to substantiate a claim for PTSD under the amended regulations in 38 C.F.R. § 3.304(f)(3). 2. The Veteran should be asked to provide any further specific information necessary regarding his alleged stressor events in service. If he provides such information the RO/AMC should arrange for development for verification of the alleged events (through JSRRC) to its logical conclusion. 3. Obtain and associate with the claims file all records of treatment from the Columbia, South Carolina, VA Medical Center dated since June 19, 2010. 4. After the above development is completed, the RO/AMC should arrange for the Veteran to be examined by a psychiatrist to identify all psychiatric disorders found to be present, including PTSD and depression. His paper claims file and Virtual VA efolder must be reviewed by the examiner in conjunction with the examination. The examination and the report thereof must be in accordance with DSM-IV. Following examination and interview of the Veteran, and review of pertinent medical history, the examiner should opine as to the following: a) Is the Veteran's PTSD at least as likely as not (50 percent or greater probability) related to any verified in-service stressor? b) Is the Veteran's depression at least as likely as not (50 percent or greater probability) related to his service, to include as due to his service-connected low back disability? Specifically, is it at least as likely as not that depression was either (i) caused by or (ii) aggravated by (increased in severity due to) his service-connected low back disability? If the opinion is that the depression was not caused, but was aggravated, by the low back disability, the examiner must (i) identify the baseline level of severity of the depression before aggravation due to the low back disability and (ii) the level of severity of the depression after the aggravation was completed. The examiner must explain the rationale for all opinions. 5. The RO/AMC should then readjudicate the claim remaining on appeal. If any aspect of the appeal remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ E. WOODWARD DEUTSCH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs