Citation Nr: 1315559 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 06-24 894A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This case was previously before the Board of Veterans' Appeals (Board) in July 2010 and October 2012. Each time, it was remanded for further development. The Board requested that the Veteran identify all health care providers who had treated him for headaches. The Board also directed the RO to schedule the Veteran for an examination to determine the nature and etiology of any headache disorder found to be present. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denial of entitlement to service connection for headaches. Thereafter, the case was returned to the Board for further appellate action. In May 2009, during the course of the appeal, the Veteran had a video conference with the Acting Veterans Law Judge whose signature appears at the end of this decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT A chronic, identifiable headache disorder was first manifested many years after service, and the preponderance of the evidence shows that it is unrelated to any incident in service. CONCLUSION OF LAW Headaches are not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for headaches. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In May 2006, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In September 2006, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the following relevant evidence: the Veteran's service treatment and personnel records; records reflecting his treatment from January 1995 through October 1998 at the University Medical Center, Louisiana State University; records reflecting his February 1995 treatment through the Baptist Memorial Hospital System; records and reports reflecting his VA treatment from July 1998 through September 2010; and the transcript of his March 2009 video conference. The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Acting Veterans Law Judge identified the material issue, asked the Veteran to complete release forms so that VA could obtain the Veteran's treatment records from a private health care provider, asked whether the Veteran had received treatment from any other health care providers, and asked whether the Veteran felt that he received a fair hearing. In addition, the Acting Veterans Law Judge left the record open for 30 days, so that the Veteran could submit additional evidence to support his claim. As such, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In April 2011, VA examined the Veteran to determine the nature and etiology of any headache disorder found to be present. The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. In December 2012, the RO obtained an additional review of the record and an opinion from a second VA health care provider. That opinion was also consistent with the other evidence of record. The examiner also provided a rationale for the opinion. Therefore, the Board concludes that the VA examination and record review are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In July 2010, the Board remanded this case so that additional medical records and Social Security Administration (SSA) could be obtained. Additional medical records were obtained and in October 2010, the RO received notice from SSA that the Veteran's records had been destroyed. In October 2012, this case was remanded a second time so that an adequate medical opinion could be obtained Therefore, Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). During his May 2009 video conference with the undersigned Acting Veterans Law Judge, the Veteran testified that he had a headache disorder, which first manifested during his service in the Republic of Vietnam in April 1966. He stated that his headaches have been chronic since he left service and that he self-medicated for many years after his discharge. Therefore, he maintains that service connection is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report when he first noticed his headaches and whether or not they have been chronic since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran believes his headaches were caused by his documented in-service headaches, his statements are credible. Id., see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). A review of the record discloses that at the time the Veteran entered service, he did not have any complaints of and an examination revealed no clinical findings of headaches. Indeed, during his August 1965 service entrance examination, he responded "No", when asked if he then had, or had ever had, frequent or severe headaches. Moreover, a neurologic evaluation was normal. Thus, with respect to the presence of headaches, he was presumed to be in sound physical condition at the time he entered service. In April 1966, Veteran was treated for a one month history of frontal headaches, usually preceded by tightness over the occipital region and progressing anteriorly. On examination, his blood pressure was 118/70, and there was no tenderness over his sinuses. It was noted that he had a history of wearing glasses, and he was referred for an eye examination. The following day, the eye examination was within normal limits, and the impression was tension headaches. In February 1967, the Veteran was treated for complaints of headaches which were usually right-sided and frontal in nature. They were reportedly preceded by an aura of dizziness, and the Veteran reported that he had taken Cafergot without success. Medication was prescribed, and he was given an intramuscular injection of Demerol. The Veteran completed his remaining 7 months of active duty without any complaints or clinical findings of headaches. Indeed, during his September 1967 service separation examination, he, again, responded "No", when asked if he then had, or had ever had, frequent or severe headaches. Moreover, a neurologic evaluation was normal. There were no further complaints or clinical findings of headaches until February 1995, when the Veteran was treated through the Baptist Memorial Hospital System. He reported a one week history of headaches after slipping a falling on the ice. He reportedly sustained a closed head injury; however a CT of his brain was negative for any associated abnormalities. The record was negative for any history of headaches prior to that time, and in a December 1996 letter, the Veteran's treating neurologist, J. D. O., M.D., strongly suggested that the Veteran's had had their onset after the Veteran's head injury. Such a lengthy time frame without any clinical evidence to support the assertion of a continuity of symptomatology combined with his neurologist's statement does not provide support for the Veteran's contentions that he experienced continuous problems with headaches since service. Rather, such circumstances militate strongly against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition). Nevertheless, the lack of medical evidence of continuing symptomatology does not end the inquiry. More recent records show that the Veteran has a chronic headache disorder, and the question remains as to whether there is a nexus to service. In June 2001, VA treated the Veteran for a recurrence of his headaches. His history of a closed head injury and associated headaches were noted; however, those headaches had reportedly stopped for a period of time and had "recently" recurred. In February 2006, it was noted that he had been having intermittent headaches for years. Though the record remained negative for a nexus to service, the evidence of treatment for headaches in service and the Veteran's contentions were sufficient to schedule him for a VA examination to determine the nature and etiology of any headache disorder found to be present. During the April 2011 VA neurologic examination, the Veteran reiterated that he began to experience severe, frontal headaches in 1966. Following the examination, the diagnosis was migraine-type headaches. The examiner stated that he did not find evidence that the Veteran's headaches were related to service. In a December 2012 addendum, a different VA examiner essentially confirmed that finding. He opined that the Veteran's headaches were unrelated to service. He stated that the headaches in service in April 1966 and February 1967 had been resolved without residual disability. In so saying, he noted that the Veteran's service separation examination was negative for headaches or the residuals thereof. He further noted that the Veteran's 1995 head injury and concluded that his headaches were either associated with that injury or with the Veteran's age, environment, or activity. Such concurring opinions against a nexus to service further militate against finding of service connection for the Veteran's current headache disorder. The only evidence of record to the contrary is the Veteran's own opinion. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether his headaches are caused by his period of medical service or his post-service head injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, his unsupported lay opinion lacks probative value. In sum, the preponderance of the evidence is against a finding of a chronic identifiable headache disorder in service or of a nexus between the Veteran's current headache disorder and service. Therefore, the criteria for service connection are not met. Accordingly, service connection for a headaches is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. Since the preponderance of the evidence of record is against the Veteran claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for headaches is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs