Citation Nr: 1315699 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 06-21 792A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a headache disability, to include as secondary to a service-connected seizure disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to August 1986 and from March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). The issue was remanded by the Board in November 2010 and October 2012 for additional development. The requested development has been accomplished and further remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). In the October 2012 decision, the Board granted a 60 percent rating for the service-connected seizure disability and granted entitlement to a total disability rating based on individual unemployability due to service-connected disability. Therefore, those issues are no longer before the Board and will not be addressed in this decision. FINDINGS OF FACT The most probative evidence of record shows that the Veteran's currently manifest headache disability did not have its onset during a period of active duty or active duty for training; was not aggravated during a period of active duty or active duty for training; and is not proximately due to or aggravated by a service-connected disability, including a seizure disability. CONCLUSION OF LAW A headache disability was not incurred in or aggravated by active service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in November 2004, August 2006 and November 2010, both prior to and subsequent to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent March 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence since the Board's October 2012 remand. VA has obtained an examination with an addendum with respect to the claim on appeal. Therefore, the Board finds that VA has satisfied the duty to assist provisions of law. Consequently, no further notice or assistance to the appellant is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military service includes (1) active duty (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2012). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA but (except for exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). If a claim relates to period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period. Paulson v. Brown, 7 Vet. App. 466 (1995). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6(c) (2012). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2012). Annual training is an example of active duty for training, while weekend drills are inactive duty training. Evidence of continuity of symptomatology of a disability from the time of service to the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); 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 the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a headache disability, to include secondary to his service-connected seizure disability. The Veteran's service medical records show that in October 2003, he reported a three-year history of headaches following a heat injury during summer camp at Ft. McClellan, Alabama. That is clear and unmistakable evidence that the disability preexisted his second period of active duty. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). However, according to his service personnel and National Guard records that were obtained upon remand, the Veteran was not on active duty or active duty for training status at the time of the heat injury. Consequently, service connection on a direct basis is not warranted for a headache disability. Additionally, there is nothing in the record that would support the conclusion that the disability was aggravated beyond the normal progression during his period of active duty from March 2003 to March 2004. He reported to duty on March 15, 2003 and he experienced his first seizure in mid-April. He did not seek any treatment for his headaches prior to the seizure. Aggravation may not be conceded where a disability underwent no increase in severity during service. 38 C.F.R. § 3.306 (2012); Falzone v. Brown, 8 Vet. App. 398 (1995) (holding that the presumption of aggravation created by 38 C.F.R. § 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228 (1991). Notably, the Board observes that during a Medical Evaluation Board, it was determined by a panel of physicians that the Veteran's headaches existed prior to service and were not aggravated beyond the normal progression. Therefore, there is a specific finding that they did not increase beyond the normal progression during that period of active service. The Board observes that a March 2008 private treatment report indicated that the Veteran gave a history of hitting his head when he had his seizure and that he then began to experience sub occipital headaches. However, that history is in contradiction to the information provided at the time of the initial seizure with regard to a history of pre-existing headaches. Therefore, the Board has accorded it limited probative value. Swann v. Brown, 5 Vet. App. 229 (1993) (Board is not bound to blindly accept diagnoses that are based on an unconfirmed history as reported by the Veteran); Calvert v. Brown, 5 Vet. App. 461 (1993) (opinion based upon an inaccurate factual premise has no probative value). Finally, the Board finds that the most probative evidence of record concludes that there is no relationship between the Veteran's currently manifest headache disability and his seizure disability and no demonstrable aggravation. In fact, the medications for the seizure disability have an ameliorative effect on his headaches. Therefore, the Board finds that service connection is also not warranted on a secondary basis. During the development of his claim, the Veteran was provided with several VA examinations, including with respect to ascertaining if there was any relationship between the Veteran's headaches and his service-connected seizure disability. A December 2010 VA examination report concluded that the Veteran's headache disability was less likely aggravated by his seizure disability. The physician noted that the headaches were more frequent than the seizures and did not appear to be related in time. Additionally, the medications used for the seizures were also used for the treatment of migraines and could be the reason that he experienced fewer headaches. In a December 2011 addendum statement, the examiner noted that there was no evidence that the pattern of the Veteran's headaches accelerated beyond the natural progression of the disease because the patters were similar. Additionally, the etiology for the two disorders would be different based on physiology as well as the fact that the onset of the conditions was completely separate. The claims file was reviewed and the examiner explained the findings and conclusions. The Board has accorded those opinions significant probative value. Winsett v. West, 11 Vet. App. 420 (1998); Bloom v. West, 12 Vet. App. 185 (1999). The Board has considered the Veteran's statements in support of his claim. He is competent to report that he had headaches. However, he is not competent to diagnose himself with a neurological disorder, or to attribute his complaints to a specific cause. Neurological diseases are complex disorders that require specialized training and testing for a determination as to diagnosis and causation, and the Veteran has not demonstrated that he has medical training to render such opinions. Therefore, his statements alone cannot be accepted as competent evidence sufficient to establish service connection for a headache disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the appeal must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a headache disability, including secondary to service-connected seizure disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs