Citation Nr: 1314955 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-05 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for headaches, to include as secondary to service-connected cervical and lumbar spine disabilities. REPRESENTATION Veteran represented by: Larry Stokes, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1986 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge on the issue of entitlement to service connection for a cervical spine disability. Neither the Veteran nor his representative indicated at the hearing or through any of their written communications to the Board that the Veteran wished to have a hearing with respect to the issue of entitlement to service connection for headaches. Therefore, the claim can proceed without a hearing. An April 2011 Board decision remanded the claim for additional development. In pertinent part, the Board's remand directed that the RO obtain a medical opinion that addressed whether the Veteran's headaches were secondary to or aggravated by his service-connected spine disability. The claim was returned to the Board for further appellate review in July 2012, and the Board remanded the Veteran's claim for compliance with the April 2011 remand. Specifically, the Board found the opinions provided were inadequate as they did not address whether the Veteran's headaches were aggravated by his cervical and lumbar spine disabilities. In January 2013, a VA physician provided an opinion as to whether the Veteran's headaches were aggravated by his service-connected disabilities. As described in greater detail below, the Board finds this opinion, in conjunction with the other VA examinations and opinions of record, adequate for purposes of determining service connection. Accordingly, the Board finds that there has been substantial compliance with the directives of the April 2011 remand and the July 2012 remand, and therefore, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In a December 2012 written letter, the Veteran asserted that he had become involuntarily unemployed on or about September 10, 2009 as the result of his service-connected disabilities. As the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. Therefore, it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent and probative evidence of record does not relate the Veteran's headaches directly to active duty or on a proximate basis to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for headaches, to include as secondary to service-connected cervical and lumbar spine disabilities, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Although the Veteran was not provided a specific letter concerning his claim of entitlement to service connection for headaches, the record shows that a September 2003 letter pertaining to the Veteran's claim for service connection for gastroesophageal reflux disease secondary to service-connected disabilities and a December 2008 Statement of the Case satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the duty to assist the Veteran has been satisfied in this case. The record includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. The Veteran was also afforded VA examinations in February 1986 and November 2011, and addendum opinions were obtained in April 2012 and January 2013. The record demonstrates that the VA examiners reviewed the Veteran's relevant medical history, to include his documented in-service injury and his lay testimony regarding his symptoms during and since separation from service, completed physical examinations and other appropriate testing, and provided opinions with respect to the theories of entitlement based on direct and secondary service connection. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Additionally, in accordance with the Board's April 2011 remand, a VA physician provided an opinion in January 2013 as to whether the Veteran's headaches were aggravated by his service-connected disabilities. Therefore, the Board finds the examinations and opinions of record to be sufficient and adequate for purposes of determining service connection. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran asserts that his current headaches had their onset during active duty. He reports that in September 1983, he was struck in the head with a rucksack during basic training and fell down a flight of stairs. The Veteran contends that he has had constant headaches since the incident. Additionally, the Veteran states that he has severe headaches as the result of his service-connected cervical and lumbar spine disabilities. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). A January 1984 service treatment record indicates the Veteran injured his neck and back when a rucksack fell on the top of his head. The Veteran complained of constant back pain and headaches. Service treatment records dated in February 1984 and March 1984 show the Veteran complained of constant headaches after falling down stairs, and in June 1984, the Veteran reported a medical history of frequent headaches. In October 1984, a medical board hearing was held to determine the Veteran's physical fitness for active duty. The Veteran stated that in September 1983 he was hit in the head with a rucksack and fell down a flight of stairs. The Veteran stated that when he went to sick call the next day he was given a Motrin and aspirin for headaches and that he continued to go to sick call afterward. He reported that he first went to see a doctor in January 1984 for his symptoms. The Veteran described getting headaches several times a week. He stated that at first the headaches were a dull ache but a few months later he began to feel like he was being hit in the head with a spike. The Veteran reported that currently it felt as though his head was being split open with a spike and that the headaches lasted several minutes. He stated that he took several aspirin and Motrin for the headaches. A July 1985 service treatment record demonstrates the Veteran reported chronic headaches. In a September 1985 letter, the Veteran reported that his head began aching immediately after the in-service incident and that he was given aspirin for headaches. The Veteran stated that his chief complaint involved constant pain from his neck to his lower back and headaches. The Veteran reported that he was found physically unfit for further military service and discharged. The Veteran's DD-214 reflects that the reason for his separation from service was a physical disability. On VA examination in February 1986, the Veteran reported that he sustained an injury in September 1983 when he was hit by a knapsack in the head, fell down a flight of stairs, and struck his back. The Veteran stated that since the incident he had frequent, daily headaches that lasted one to two seconds with sharp pain followed for several hours by a duller posterior pain in the occipital region. The VA examiner's impression was chronic headaches which may be tension without evidence of any structural neurological dysfunction. A September 1987 VA examination report shows the Veteran reported constant headaches after falling down the stairs and being hit in the head with a rucksack during active duty. A March 1990 VA treatment record demonstrates the Veteran complained of sometimes having headaches. On VA examination in May 1991, the Veteran described back pain that radiated up into his head. In February and May of 1993, the Veteran reported having had headaches for years. In May 1997, although one VA treatment record indicates the Veteran denied headaches, an additional VA treatment record shows the Veteran reported having occasional headaches. In October 2001, the Veteran complained of chronic head pressure, and an August 2002 VA treatment record indicates the Veteran reported occasional headaches. In August 2007, the Veteran reported a history of headaches, and in September 2008, the Veteran complained of forehead pressure. In July 2009, a VA treatment record and a private treatment record reflect the Veteran's complaints of headaches, and an August 2007 private treatment record shows the Veteran reported a history of headaches. In July 2011, the Veteran reported that he had received treatment for his headaches from various healthcare providers from 1986 to 1991 and from 2000 to 2005. However, the Veteran stated he was unable to obtain those records for review. The Veteran underwent VA examination in connection with his claim in November 2011. The report shows the Veteran was diagnosed with tension headaches and cervical muscular headaches in 1983. The VA examiner recorded the Veteran's history of being struck by a rucksack while on active duty and falling down a flight of stairs. The Veteran reported that he sometimes took Aleve for his headaches and that he took morphine daily, although this treatment was more for his back pain than his headaches. On examination, the Veteran reported constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity. He also complained of very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran denied non-headache symptoms and characteristic prostrating attacks of migraine headache pain. After a review of the Veteran's claims file, the VA examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran's complaints of headaches during active duty and that he had injured his lower back and neck in 1983. The VA examiner stated it appeared that when the Veteran used the term headaches during active duty, he was referring to the muscles at the back of his neck. After a review of the Veteran's private treatment records and service treatment records, the VA examiner noted that there had only been three to four times in the past 15 years when the Veteran complained of headaches, and there was only one occasion when the Veteran complained of "chronic headaches." The VA examiner noted this was described as frontal headaches involving pressure, which was not the same as the posterior occipital head pains treated during active duty. As such, the VA examiner found the Veteran's current headaches were not the same as those experienced during active duty. Furthermore, the VA examiner recorded the Veteran's reports that three to four times per month he was unable to work due to debilitating headaches. The VA examiner found it was difficult to reconcile this statement with the Veteran's medical history, which did not show that the Veteran went to see a neurologist for his headaches or had any definitive treatment for headaches. It was the VA examiner's opinion that when the Veteran missed work, it was more due to his neck and back problems. In support of his claim, the Veteran submitted a February 2012 letter from a private chiropractor who stated that he had treated the Veteran since August 2007 for injuries to his cervical, thoracic, and lumbar spine as well as headaches. The chiropractor reported that the Veteran's injuries dated back to a slip and fall accident in 1983 and that the Veteran received a medical discharge from the Army in December 1985 due to those injuries. The chiropractor stated the Veteran continued to suffer frequent neck and back pain and severe occipital headaches and opined that it seemed logical and likely, due to the absence of subsequent trauma, that his current symptoms were directly related to his 1983 injury. In April 2012, a VA physician provided an additional opinion with respect to the Veteran's service connection claim. The VA physician noted the Veteran's in-service injury and his complaints of occipital headaches. On examination, the Veteran reported frontal headaches, which the VA physician found were described differently from the occipital headaches during active duty and at the time of the Veteran's separation from service. Based upon these findings, the VA physician opined that the Veteran's current headaches were less likely as not incurred in or caused by the in-service injury. If the headaches were related to the injury, the VA physician stated he would expect that the headaches would have been persistent and of the same quality and nature. In an April 2012 addendum opinion, the same VA physician opined that the Veteran's current headaches were less likely as not related to his service-connected cervical and lumbar spine conditions as frontal tension headaches had not been associated with these disabilities in medical literature. Further, the VA physician stated the Veteran's occipital pain would not be diagnosed as headaches but instead as muscle pain. After reviewing the Veteran's claims file in January 2013, a VA physician opined that it was less likely than not that the Veteran's claimed condition was proximately due to or the result of his service-connected conditions. The VA examiner found the claim did not appear logical as the Veteran had opined that his headaches began after he fell in 1983. The VA examiner found the Veteran's neck pains, therefore, could not have caused his headaches as the symptoms of both began at the same time. The VA examiner further noted that there did not appear to be any major complaints of occipital neck pains after the initial fall in 1983 until 2012. The VA examiner noted that the Veteran had denied headaches over the years and that although he frequently mentioned his back and neck pains during mental health visits, he had only complained of headaches recently. The VA examiner found the Veteran's claims that his headaches began recently due to years of neck pain were refuted by his statements in previous examinations that his headaches began after the in-service injury. Therefore, the VA examiner found the Veteran's headaches were not the result of his spine pain and were not aggravated by the Veteran's spine pain. In an April 2013 written statement, the Veteran's representative asserted the January 2013 VA physician's opinion was inadequate for VA purposes because the record erroneously indicated that an in-person examination was performed and because the review was not performed by a neurologist. In addition, the Veteran's representative stated the Veteran had seen a neurologist in 1997 and was also currently seeing a VA neurologist, contradictory to the VA physician's findings. The Veteran's representative contended these neurologists had related the Veteran's current headaches to the in-service injury and therefore service connection was warranted based upon the theory of direct service connection. Direct Service Connection First, the Board finds the evidence of record reflects a diagnosis of headaches during the pendency of the appeal, and therefore, the Veteran has established a current disability for the purpose of service connection. In addition, service treatment records reflect complaints of chronic headaches after the Veteran was hit in the head by a rucksack and fell down the stairs in September 1983. As such, the Board finds the record supports an in-service event for the purpose of service connection. Concerning a nexus between the Veteran's current disability and his active duty service for the purpose of direct service connection, there are conflicting medical opinions of record. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (Court) has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board affords the November 2011 VA examiner's opinion significant probative value with respect to the issue of direct service connection. The VA examiner reviewed the Veteran's claims file and cited specific records in support of the opinion. The VA examiner also considered the Veteran's lay statements in providing the rationale. Here, the VA examiner found it significant that the record showed the Veteran had only complained of headaches three to four times in the past 15 years and had only complained of "chronic headaches" on one occasion. Further, the VA examiner noted the Veteran described his chronic headaches as frontal headaches involving pressure, which were not the same as the posterior occipital head pains treated during active duty. As a result, the VA examiner found that the Veteran's current headaches were not the same as those experienced during active duty. Similarly, the April 2012 VA examiner noted the Veteran currently described frontal headaches which were different from his complaints of occipital headaches during active duty. The VA examiner opined that if the Veteran's current headaches were related to the in-service headaches, they would have been persistent and of the same quality and nature. In this respect, the VA examiner stated any current occipital pain would be diagnosed as muscle pain related to cervical degenerative joint disease and not headaches. The Board acknowledges the positive nexus opinion provided by the private chiropractor in February 2012 but affords it less probative value than the VA examiners' opinions. The private chiropractor opined that it seemed logical and likely that the Veteran's current symptoms were directly related to his 1983 injury given the lack of subsequent trauma and his reported continuity of symptomatology. However, the Board finds it significant that the chiropractor reportedly began treating the Veteran in August 2007, approximately 24 years after the in-service injury. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Because the chiropractor's opinion appears to rely solely on the Veteran's lay statements regarding his symptoms, and the medical evidence of record does not support the Veteran's lay statements, the Board finds the chiropractor's opinion deserves little probative value. In this respect, the Veteran is competent to testify to matters within the realm of his personal knowledge, such as symptoms of headaches. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). However, while the Veteran's statements are competent evidence of events and symptomatology, the Board must also determine whether such evidence is credible. Id. In this respect, the evidence of record does not support the Veteran's statements regarding a continuity of symptomatology since the in-service event. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements or consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Although VA treatment records and private treatment records demonstrate the Veteran sought treatment for neck and back pain on a rather continuous basis since his separation from service, the evidence does not show the Veteran complained of headaches on a frequent basis or that he sought specific treatment for his headaches. The November 2011 VA examiner also found it was difficult to reconcile the Veteran's statements regarding the severity of his symptoms with his medical history as reflected by the evidence of record. Likewise, it was the VA examiner's opinion that although the Veteran reported frequently missing work due to his headaches, the evidence indicated that his absence was more due to his neck and back problems. As a result, the Board finds the Veteran's lay testimony regarding the continuity and severity of his symptomatology not credible and therefore not competent evidence to establish service connection on a direct basis. Further, the Board finds the evidence does not support the representative's statements regarding any probative medical opinions of record relating the Veteran's current headaches to active duty and/or his service-connected disabilities. In particular, a review of the Veteran's records does not indicate a diagnosis of posttraumatic headaches by a VA neurologist. As such, the Board finds the evidence of record does not support entitlement to service connection on a direct basis. Secondary Service Connection With respect to whether the Veteran's current headaches were caused or aggravated by his service-connected disabilities, the Board affords the opinions provided by the VA physicians in April 2012 and January 2013 significant probative value. After reviewing the Veteran's claims file, the April 2012 VA examiner opined that medical literature had not associated frontal tension headaches with cervical and lumbar conditions, and therefore, it was less likely as not that the Veteran's current headaches were related to his service-connected disabilities. In addition, the January 2013 VA examiner reviewed the Veteran's claims file and opined that the Veteran's headaches were not the result of or aggravated by his spine pain. The VA examiner pointed out the fact that the Veteran first asserted his headaches had their onset in September 1983, and therefore, it was not logical to find that his service-connected disabilities caused his current headaches. Further, the VA examiner correctly highlighted the absence of complaints of occipital pain following active duty, despite the record demonstrating frequent complaints of neck and back pain. In this respect, the Boards finds the VA examiner's opinion deserves greater probative weight because the VA examiner focused on the Veteran's complaints with respect to his specific symptoms, to include the location and severity of his headaches. In addition, the VA examiner highlighted the inconsistency of the Veteran's statements concerning the onset of and treatment for his headaches. The Board acknowledges the representative's assertions with respect to the adequacy of the January 2013 VA physician's opinion. However, the Board finds that the primary care physician was more than capable of providing a VA medical opinion. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007). In Cox, the Court indicated the Board may assume the competency of any VA medical examiner as long as the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See also Williams v. Brown, 4 Vet. App. 270, 273. Furthermore, although the VA examiner indicated on the report that an in-person examination was performed, the Board finds the absence of such an examination does not render the opinion inadequate. Here, the record demonstrates the VA examiner reviewed the claims file, to include the Veteran's service treatment records, VA treatment records, private treatment records, and his specific assertions regarding his symptoms and treatment during and following active duty. Again, the Board acknowledges the Veteran is competent to describe his symptoms. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, an appellant's own conclusion stated in support of his claim that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159; see also Grivois v. Brown, 6 Vet. App. 136 (1994). Thus, a medical opinion is needed to connect one medical condition to another medical condition. In this case, the most probative medical evidence of record provides a negative opinion concerning a nexus between the Veteran's claimed headaches and his service-connected disabilities. As stated above, the Board finds the opinions provided by the April 2012 and January 2013 VA physicians adequate as the physicians reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions with supporting rationale. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for headaches, to include as secondary to service-connected cervical and lumbar spine disabilities. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for headaches, to include as secondary to service-connected cervical and lumbar spine disabilities, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs