Citation Nr: 1317479 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-14 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1974 until his retirement in June 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In March 2010, the Board, in relevant part, granted the Veteran's request to reopen a previously denied claim for service connection for headaches and then remanded the reopened claim for further development. In November 2011, the Board again remanded the claim of service connection for headaches to obtain a VA medical opinion addressing a newly asserted theory of secondary service connection. FINDING OF FACT Headaches, diagnosed as atypical migraine, had onset in service. CONCLUSION OF LAW The criteria for service connection for headaches, atypical migraine, are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claim of service connection, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records show that in June 1981 the Veteran sought treatment for headaches, which were assessed as related to emotional stress. In July 1982, the Veteran sought treatment for several symptoms, including a headache, and his complaints were assessed as related to tonsillitis. In November 1990, the Veteran reported experiencing a headache and a sore throat, and his complaints were assessed as related to viral syndrome and upper respiratory infection. In February 1997, the Veteran reported experiencing a dull headache with pain behind his eyes, as well as abdominal and back pain, and his complaints were assessed as related to a viral syndrome. The Veteran retired from service effective June 1998, and although his service treatment records indicate that a retirement physical examination was performed, attempts to obtain this medical record have been unsuccessful. After service, the Veteran first sought treatment for recurrent headaches in December 2004, at which time he reported to his VA treatment provider that he had experienced the headaches for approximately ten years. Subsequent VA and private treatment show that the Veteran sought treatment for his recurrent headaches in September 2005, January 2006, January 2008, March 2009, May 2009, July 2009, and September 2009. In September 2005, the VA treatment provider stated that the Veteran's reports of frequent right-sided headaches may be indicative of a common migraine. In March 2009, the Veteran's right-sided headaches were treated as a manifestation of a presumed sinus infection. When the Veteran reported experiencing headaches and other symptomatology in May and December 2009, the Veteran's private treatment provider noted assessments of urinary tract infections. In December 2009, the Veteran testified that he did not seek frequent medical treatment during service, as he believed that his leadership role required him to set a proper example. On VA examination in June 2010, the Veteran reported experiencing recurrent headaches, characterized by pain behind his right eye, since their onset during service sometime in the mid-1980s. The assessment was atypical migraine headaches. No etiology opinion was provided at this time. In August 2010, the VA examiner reviewed the Veteran's claims file in order to provide an etiology opinion. The VA examiner found the Veteran's medical history to be credible, but after reviewing the file, the VA examiner stated that the atypical migraines were less likely than not related to service. A second medical opinion was obtained in February 2011. After reviewing the service treatment records, the VA examiner stated that the documented headache treatment during service did not reflect treatment for atypical migraine. Rather, the examiner stated that the 1981 record characterized the Veteran's headaches as stress-induced, and the 1982 and 1990 records reflect that the Veteran's reported headaches were manifestations of systemic illnesses, namely, tonsillitis and viral syndrome with an upper respiratory infection. The VA examiner concluded that while the Veteran was credible and that the atypical migraine headaches probably begin in the mid-1980s, based on the lack of documentation of treatment for the headaches in service, it was less likely than not that the current atypical migraine headaches were related to service. Pursuant to the Board's remand directive in 2011, the Veteran was reexamined in December 2011, and after concluding that the Veteran was a credible historian, the VA examiner determined that based on the lack of documentation in the Veteran's service treatment records of treatment for recurrent headaches, the Veteran's current atypical migraine headaches were less likely than not related to service or his service-connected sleep apnea or cervical spine disability. The VA examiner further stated that neither the Veteran's service-connected sleep apnea nor cervical spine disability had permanently aggravated the Veteran's migraine headaches, as poor sleep quality does not cause an irreversible worsening of a headache condition. Analysis The Veteran is competent to describe the onset and nature of his headaches, which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran is also credible in describing the onset of the headaches during service, and experiencing recurrent headaches since service. In 1997, during his active service, the Veteran reported experiencing a headache emanating from behind his eye, and when seeking VA treatment for his recurrent headaches in 2004, he reported experiencing his current unilateral headaches for approximately ten years, dating the onset to active service. Moreover, the Veteran explained that he did not complain of headaches during service, because of his leadership role. Furthermore, the two VA examiners who examined the Veteran concluded that the Veteran was a credible historian. Given the competency and credibility of the Veteran's statements and testimony, the Board finds that the Veteran's lay evidence is persuasive evidence in favor of the claim. As for medical opinions, the opinions are based on the lack of documentation of treatment for chronic headaches during service or conclude that the character of the headaches in service treatment records was e inconsistent with his current headache symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of medical records to provide a negative opinion). The reliance on the lack of documentation of current headache symptoms during service is inconsistent with the VA examiners' determinations that the Veteran had credibly reported of the onset of his current atypical migraines during service. Moreover, the VA examiners did not consider in-service report of a headache emanating from behind the Veteran's eye, which is similar to the postservice headaches. The VA examiners also failed to consider that the Veteran, in his duties as a Master Sergeant, did not have frequently seek medical treatment. In weighing the evidence, the Board finds that service connection for headaches as having onset in service is warranted. The service incurrence has been shown by satisfactory lay evidence. Thus, it is at least as likely as not that the Veteran's currently diagnosed headaches, atypical migraine headaches, were incurred in service, and service connection is established. 38 U.S.C.A. § 5107(b). As the Board is granting service connection for headaches on a direct basis, the Board need not address the theory of secondary service connection. ORDER Service connection for headaches, diagnosed as atypical migraine headaches, is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs