Citation Nr: 1318507 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-15 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a chronic headache disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1976. He had subsequent service in the Naval Reserves. He was transferred to the Retired Reserve in January 1999. This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's February 2008 claim for service connection for a chronic headache disability, as well as additionally denying service connection claims for rhinorrhea and tinea barbae/pseudofolliculitis barbae. Then, a September 2008 RO rating decision confirmed and continued the denials of these claims. The Veteran proceeded to perfect an appeal of these claims to the Board. In a June 2011 decision, the Board granted the claim for service connection for tinea barbae/pseudofolliculitis barbae. The RO then implemented this grant in a June 2011 rating decision. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Also in June 2011, the Board remanded the remaining claims for headaches and rhinorrhea to the RO, via the Appeals Management Center (AMC), for additional development and consideration. The Veteran testified at a hearing at the RO in March 2011, before a Veterans Law Judge of the Board. A transcript of the hearing is associated with the claims file. In a July 2012 notice, the Board informed him that the Veterans Law Judge who had conducted his hearing was no longer employed by the Board, and he therefore had the right to an additional hearing before a different Veterans Law Judge. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Later that month, the Veteran responded that he did not wish to appear at a new Board hearing, and requested that his case be considered on the evidence of record. Subsequently, in an August 2012 decision, the Board denied the Veteran's claim for service connection for a disorder, manifested by rhinorrhea. As this Board denial went unappealed, the rhinorrhea claim is no longer on appeal before the Board. In addition, the Board's August 2012 decision again remanded the remaining claim for a headaches disability to the AMC for additional development and consideration. This development was accomplished. In January 2013, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the headaches claim and returned the file to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran had headaches during service, which were treated in association with a viral upper respiratory infection/flu and a sinus disability. 2. The Veteran has a current disability of headaches associated with rhinitis. He does not have an independent headaches disability, such as migraines. 3. There is no competent and credible evidence the Veteran's current headache disability had its onset in service or within one year of discharge or that any current headaches disability is related to his active military service, to include alleged noise exposure. 4. Since the Veteran has not established service connection for rhinorrhea or for a sinus disorder, there is no service-connected disorder to which his current headache disability may be secondarily service-connected. CONCLUSION OF LAW A chronic headache disability was not incurred in or aggravated by the Veteran's military service, may not be presumed to be and is not secondary to his sinus disorder or a disorder manifested by rhinorrhea. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Before addressing the merits of the issue decided below (chronic headache disability), the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by a letter from the RO issued in April 2008 providing the criteria for establishing direct service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded, in compliance with Dingess. This letter accordingly addressed all notice elements and predated the initial adjudications by the AOJ/RO in August and September 2008. The RO's notices were in the preferred sequence, without timing or content defects. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The Veteran was provided an opportunity to set forth his contentions during the hearing before a Board Veterans Law Judge in March 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that the Veterans Law Judge did not explain the bases of the prior determinations, or suggest the submission of evidence that may have been overlooked, during the Board hearing, the Veteran has not been prejudiced. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing the requirements of 38 C.F.R. 3.103(c)(2)). Specifically, the Veterans Law Judge asked questions in an attempt to obtain evidence to substantiate the claim, and the Veteran discussed his asserted in-service headaches and subsequent symptoms and treatment. The hearing focused on the elements necessary to substantiate his claim, and the Veteran and his representative demonstrated actual knowledge of such elements via questioning and testimony. Moreover, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the Board hearing. Rather, the Veteran has had ample opportunity to participate in the adjudication of his claim, and he and his representative have submitted pertinent evidence and made pertinent arguments in support of his service connection claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Indeed, the Board emphasizes that the Veteran was notified in July 2012 that he was entitled to an additional opportunity for a Board hearing, but specifically declined another hearing in a written response, also dated in July 2012. Accordingly, VA has substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and adequate notice has been provided. Relevant to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claim during the course of this appeal. The RO has obtained service treatment records, service personnel records, and VA and identified private treatment records. The Veteran also submitted additional records as well as written statements and personal hearing testimony in support of his claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In June 2011, the Board remanded the headaches claim to the AMC to provide a VA examination and medical opinion on the nature and etiology of the Veteran's claimed headaches disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the AMC afforded the Veteran a VA examination and medical opinion in August 2011, which indicated a secondary relationship with non-service connected disabilities of viral upper respiratory infections and allergic rhinitis. However, this medical opinion did not comply with the Board's June 2011 remand directive, because the examiner needed to review the claims file in order to opine on potential direct etiology to service. A remand by the Board confers on a veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In an effort to obtain an adequate medical opinion on the nature and etiology of the claimed headache disability, the Board again remanded this claim in August 2012 for an addendum opinion from the August 2011 examiner on the nature and etiology of the claimed chronic headaches. In the event that the August 2011 examiner was unavailable to provide an addendum, the Board's June 2011 remand alternatively requested the AMC to provide a new VA examination and etiological opinion. See id. Following this most recent remand, it appears that the AMC was unable to obtain an addendum opinion from the August 2011 VA examiner. Rather, the Veteran was afforded another VA examination and medical opinion in January 2013, with a detailed rationale, including citation to documents in the claims file. The Board finds that the January 2013 VA examination and accompanying opinion, obtained on remand, is adequate to decide the issue, as it is predicated on an interview with the Veteran, a review of the record, and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. So, ultimately, there was compliance with the Board's prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268, 271 (1998) violation when the examiner made the ultimate determination required by the Board's remand). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd. 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A. II. Analysis The Veteran seeks entitlement to service connection for headaches. During his personal hearing, the Veteran testified that he was treated for headaches on several occasions during service, primarily in association with rhinorrhea or tension. See March 2011 Board Hearing Transcript (T.), at 15-18. His representative's statement (VA Form 646), dated in February 2011, stated that the Veteran had an onset of headache symptoms during active duty service in the Navy and following service, has self-treated with over-the-counter medications. The Veteran also testified to headaches in association with noise exposure. See March 2011 Board Hearing Transcript, at 16-17. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. §3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). For the purposes of this regulation, chronic diseases include only those diseases listed in 38 C.F.R. §3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310(a). Secondary entitlement is also available when a service-connected condition has chronically - meaning permanently - aggravated the disability in question, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board acknowledges the Veteran presently has a headache disability. Taking into account his complaints of frontal facial headaches in the area around the nose and sinuses, recent VA examiners diagnosed him with a current headaches disability. The August 2011 VA examiner diagnosed the Veteran with headaches, more likely than not due to viral upper respiratory infections and allergic rhinitis. More recently, the January 2013 VA examiner diagnosed him with headaches associated with rhinitis. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is an indication of in-service incurrence of headaches upon review of the service treatment records for his period of active duty from 1972 to 1976 in the U.S. Navy. The August 1972 active duty entrance examination report was unremarkable for complaint or clinical indication of any headaches disability. Notably, though, a February 1976 service treatment record documents he complained of headaches, albeit along with other symptoms of nausea, productive cough for a week, and hoarseness of voice; and was diagnosed with a viral upper respiratory infection/flu. There were no other documented complaints, treatment or diagnoses of headaches during active duty. The June 1976 separation examination report was unremarkable for any indication of a chronic headaches disability. Indeed, the Veteran specifically denied to the separation examiner that he had frequent or severe headaches. The Veteran also reported he was not taking any medications and that "I am in good health." Clinical evaluation at the separation examination showed a normal "head, face, neck and scalp," "sinuses," and "neurologic" evaluation. The Board has considered the Veteran's assertion that his headaches are partly due to being onboard a noisy naval ship during active duty (see March 2011 Board Hearing Transcript, at 16-17), and finds his assertions of in-service noise exposure to be competent, but not credible. The Veteran is certainly competent to testify concerning his alleged in-service acoustic trauma onboard a naval ship, because this is capable of lay observation and experience. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Board also finds the Veteran's lay statements of in-service noise exposure simply not credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Veteran's DD Form 214 shows his official military occupational specialty was that of a stock clerk aboard the U.S.S. Raleigh, which was stationed in Rota, Spain. There is simply no indication in any of his service personnel records that he had the place, type, or circumstance of service to corroborate his assertion of excessive in-service noise exposure, such as from weapons fire on the ship. See 38 U.S.C.A. §1154(a) (in each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence). The Board thus finds the Veteran's lay statements of in-service noise exposure are not probative in support of his claim. Shortly after service separation, in March 31, 1977, the Veteran was admitted to the Shreveport VA Medical Center (VAMC), to the ENT (ear, nose and throat) service, for complaints of sore throat, hoarseness, difficulty swallowing, and most notably, frontal headaches with a feeling of fullness in cheeks when walking; and the treating physician diagnosed acute tonsillitis. He had follow-up inpatient treatment at that VA hospital in April 1977, at which point he continued to complain of headaches, although they were more noticeable when he had closed his eyes a few days prior. He was diagnosed with acute tonsillitis. In October 1981, a VA outpatient treatment record at the Shreveport VAMC shows the Veteran complained of cold symptoms of sneezing, runny nose, nasal congestion for a weak, chills and fever, and notably, he also complained of occasional headaches; but the treating physician diagnosed the Veteran with a cold. During his period of U.S. Naval Reserve service, presumably during a period of active duty for training (ACDUTRA), there is a service treatment record in May 1983 showing the Veteran sought treatment at the Naval Regional Medical Center in Corpus Christi, Texas, for a complaint of pain to the top of the head with nasal drip, as well as sore throat and slight cough; and the clinician diagnosed him with sinus congestion. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1) (2012). Consequently, the determinative issue is whether his current headaches are somehow attributable to his active military service. See Shedden, 381 F.3d at 1163 (service connection requires a relationship or nexus between the current disability and any injury or disease during service). To resolve the etiology of the Veteran's current headaches, the Board's June 2011 remand requested that the AMC provide him a VA examination and an opinion on whether it was at least as likely as not that the Veteran's headaches were related to service. On remand, an August 2011 VA examiner diagnosed the Veteran with headaches, and opined his headaches are more likely than not due to viral upper respiratory infections and allergic rhinitis. However, the examiner did not provide any rationale for such opinion and indicated that the claims file had not been reviewed in forming the negative opinion. Indeed, the examiner noted that the claims file must be reviewed before offering an opinion on any relationship to active duty. Unfortunately, the August 2011 VA examiner did not subsequently perform a review of the claims file or provide any additional medical opinion and rationale. Thus, the Board finds the August 2011 examiner's negative medical opinion to be inadequate for resolving the etiology of the headache disability, and thus, lacking in probative value against the claim. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, in compliance with the Board's further August 2012 remand request, the AMC provided the Veteran another VA examination and medical opinion in January 2013 on the nature and etiology of the claimed headache disability. The VA examiner in January 2013 provided a negative medical opinion against the possibility that the current headaches are directly etiologically linked to service, stating that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner provided a detailed rationale based upon thorough review of the claims file, noting that the service treatment records indicated two complaints [i.e., presumably referencing his documented headache treatments during active duty in February 1976 and again during the presumed ACDUTRA in Naval Reserve service in May 1983] of headaches associated with respiratory conditions. The examiner stated noted he has no independent headache condition. The examiner stated, "In this person, [the] headache is a symptom associated with the increased nasal and sinus pressure occurring with upper respiratory infections and allergic rhinitis. In service, he had episodes of nasal congestion symptoms, which were acute only and no chronicity was seen." Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds that the January 2013 VA examiner's opinion is highly probative evidence against the possibility that an independent chronic headaches disability is directly etiologically linked to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Accordingly, a basis for a grant of service connection on a direct or presumptive basis is not presented. That said, both the Veteran's allegations and the January 2013 examiner's probative opinion indicate the possibility that his current headache disability is secondarily related to allergic rhinitis or a sinus disability. Regarding the question of secondary service connection, an underlying disease or injury must first be service connected for the Veteran to claim secondary service connection. 38 C.F.R. 3.310. Therefore, the possibility of secondary service connection is precluded because the Veteran's previous service connection claims for (1) a sinus condition with headache pain was denied by an unappealed RO rating decision in March 2010 and (2) a disorder manifested by rhinorrhea was denied in an unappealed Board decision in August 2012. So, without service connection in effect for the underlying rhinitis and sinus disabilities, there is no service-connected disorder to secondarily associate his current headache disability. 38 C.F.R. 3.310. The Veteran is certainly competent to testify concerning his history of headaches dating back to onset during service, including whenever he would have nasal congestion, cold and sinus problems, because this is capable of lay observation and experience. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; and 38 C.F.R. § 3.159(a)(2). Further, his statements asserting a continuity of symptoms since active duty service are inconsistent with his reported histories at his June 1976 active duty separation examination and periodic U.S. Naval Reserve service examinations in August 1978, February 1982, November 1983, May 1985, July 1986, June 1987, August 1988, August 1989, August 1993, and July 1998. These examination reports show that he repeatedly and specifically denied that he had frequent or severe headaches. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Board finds the Veteran's lay statements, concerning the history of his headache symptoms, are not credible, and thus not probative in support of his claim. In light of the above discussion, the Board concludes that the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER The claim for service connection for a chronic headache disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs