Citation Nr: 1318695 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-14 207 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to October 1978. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Waco, Texas. It was remanded by the Board for additional development in September 2010, July 2012, and February 2013. Required development having been completed, it has now been returned to the Board. FINDING OF FACT Migraine was not manifest during service and is not attributable to service. CONCLUSION OF LAW Migraine headaches were not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in October 2007, prior to the rating decision which is appealed herein, which explained how VA could assist him with obtaining evidence in support of his claim. The October 2007 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability and how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, and the written contentions of the Veteran. The Veteran was afforded a VA examination in October 2010 which was incomplete because the examiner related that the results of a CT scan were necessary in order to render an opinion on the etiology of the Veteran's headaches. The case was remanded to allow the examiner to provide an opinion in July 2012. An opinion was rendered in August 2012. However, the examiner overlooked a service treatment record showing a head injury. Therefore, the case was remanded for another opinion, which was completed in April 2013, based on a review of the complete record. This is adequate for rating purposes and, additionally, satisfied the directive set forth in the Board's February 2013 remand and the claim was subsequently readjudicated. For these reasons, the Board finds that VA satisfied the its duties pursuant to the VCAA in this case. The Board also finds that the directives set forth in the prior remands of this case were substantially complied with. Service connection The Veteran contends that he developed migraine headaches in service and continues to have migraine headaches. He also contends that the migraines were caused by "stress" in service or hypertension. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases may be granted if manifest to a compensable degree within one year of separation from service; however, migraines are not one of these chronic diseases. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Veteran's service treatment records do not show complaints or treatments related to migraine headaches. However, they show that the Veteran was in a motor vehicle accident in April 1978 in which he sustained trauma to his face with abrasions and swelling and no loss of consciousness. The diagnosis was closed head trauma. X-rays of the skull were negative. At his separation examination in July 1978 the Veteran denied experiencing frequent or severe headaches. His head, face, and scalp were assessed as normal as was his neurologic system. He was not diagnosed with migraine headaches or any other headache disorder at that time. Health records from a jail show that the Veteran complained of migraines on various occasions in 2003 and 2004. This is approximately 25 years after service. Subsequent private treatment records also show complaints of migraines. None of these records contain an opinion as to the etiology of the Veteran's migraine headaches. In September 2011 the Veteran got a headache after he fell and hit his head which was diagnosed as headache status post fall. The Veteran was examined by VA with respect to this claim in October 2010. At that time, he reported that he was diagnosed with migraines in 2004 but had the headaches since he was 18. He got migraines two to three times per month. The examiner indicated that a medical opinion would be provided after the results of a CT scan were received, but this did not occur. In an August 2012 addendum the examiner related that there was insufficient information to provide an opinion because there were no records of headaches, migraines, or head trauma in service. He noted that review of the Veteran's treatment records suggested migraines onset after service. The August 2012 opinion being insufficient as it overlooked the record of the April 1978 accident, a new opinion from a different examiner was received in April 2013. The examiner opined that it was less likely than not that the Veteran's migraine headaches were related to his military service. The examiner explained what the report of the April 1978 record showed and noted there was no complaint of a headache or pain around the head at that time. Also, the way that the Veteran was treated suggested that there was a low level of suspicion of any significant head trauma. Following this incident, there was no documentation of any complaints of pain or other sequelae of the motor vehicle accident during service. The Veteran was never seen or treated for headaches in service. The examiner was unable to find documentation of the initial diagnosis of migraines but the Veteran reported this diagnosis to his health care provider in 2007 when he reestablished care. At that time, the Veteran gave a long history of migraine headaches. There was documentation of a post fall headache. Since the Veteran had no history of complaints of head pain or a diagnosis of head pain or migraine headaches during his service, there is no nexus between his current migraine headaches and his military service. The preponderance of the evidence is against the claim for service connection. The appellant is competent to report that he has had headache(s) and when the headache started. However, competence and credibility are different matters. While the Veteran contends that he had migraines since service, this is belied by his report on his July 1978 separation exam when he explicitly denied having frequent or severe headaches and the normal separation examination. Therefore, the appellant's post service statements are inconsistent with his in-service reports and he is an unreliable historian. His report of headache since service is not credible. After a review of the entire record, the VA examiner who gave the April 2013 opinion concluded that there was no nexus between the Veteran's current migraine headaches and his service, noting the lack of documentation of headache complaints until many years after service. The examiner considered the record of the Veteran's April 1978 vehicle accident but concluded that this event was not the cause of the Veteran's migraine headaches and gave a reasoned explanation for her conclusion. There is no contrary medical opinion of record. While the Veteran asserts that his migraine headaches are due to "stress" or some other event from his period of service, he lacks the expertise to explain the etiology of his migraine headaches and here, there are no Jandreau/competency exceptions. Moreover, to the extent that the Veteran alleges that his headaches are due to hypertension, the Board notes that the Veteran is not service connected for hypertension. Service connection for hypertension was denied in a September 2010 Board decision. Since the Veteran is not service connected for hypertension, service connection for migraines secondary to this condition cannot be established. In sum, the most probative evidence establishes that the appellant has a remote onset of a migraine or headache disability and that there is no relationship to service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for migraine headaches is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs