Citation Nr: 1318830 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-07 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for headaches, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1983 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge, seated in Nashville, Tennessee, in January 2010. A written transcript of this hearing has been added to the claims file. In a March 2010 decision and remand, the Board found that new and material evidence had been received to reopen service connection for headaches. This issue was then remanded to the agency of original jurisdiction (AOJ) for additional development and further consideration on the merits. In its March 2010 remand order, the AOJ was asked to obtain additional post-service treatment records and afford the Veteran a VA neurological examination and medical opinion. Subsequently, additional VA treatment records were obtained, and a December 2011 VA examination with medical opinion was afforded him. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. FINDINGS OF FACT 1. The Veteran sustained injuries as a result of various accidents during service, including a February 1986 motorcycle accident, but did not report headaches or other neurological symptoms at that time or immediately thereafter. 2. Symptoms of a headache disorder were not chronic in service. 3. Symptoms of a headache disorder have not been continuous since service separation. 4. An organic disease of the nervous system characterized by headaches did not manifest during service or within a year thereafter. 5. The Veteran's current headaches are not related to active service. 6. The Veteran's current headaches are not caused or aggravated by a service-connected disability. CONCLUSION OF LAW A chronic headache disorder was not incurred in service, may not be presumed to have been incurred in service, and is not related to a service-connected disability. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In May 2005, May 2008, and April 2010 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the May 2008 letter provided him with the general criteria for the assignment of an effective date and initial rating. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, initial VCAA notice was provided the Veteran prior to the rating determination on appeal, and therefore no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the January 2010 Board hearing, the Veterans Law Judge asked questions to help direct the Veteran's testimony to the claimed in-service injuries which allegedly resulted in his headache disorder, and asked the Veteran if there were any additional records or other pertinent evidence of his in-service and post-service treatment for the claimed disorder. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, private and VA post-service treatment records, the Veteran's lay statements, and Board hearing testimony. Finally, the Veteran was afforded VA medical examinations and opinions on several occasions, most recently in December 2011. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection for Headaches The Veteran seeks service connection for headaches. He contends that he first began experiencing headaches during service as the result of multiple in-service head traumas and, in the alternative, that his service-connected intervertebral disc syndrome with degenerative disc disease of the lumbosacral spine has caused or contributed to his headaches. Along with other contentions, the Veteran has alleged that the severity of his low back pain has caused him to grind his teeth, resulting in headaches. 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. § 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). 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). In this case, organic diseases of the nervous system are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. As noted above, the Veteran contends service-connected intervertebral disc syndrome with degenerative disc disease of the lumbosacral spine has caused or aggravated his headaches. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The Board will first consider service connection on a direct basis, as having been incurred in active duty service. After a review of all the evidence, the Board finds that the Veteran sustained various injuries during motorcycle, bicycle, and helicopter accidents during service between 1983 to 1987, and was treated for a fractured ankle, joint pain, and other symptoms; however, the weight of the evidence demonstrates that he did not experience chronic symptoms of a headache disorder during service or experience continuous symptoms of a headache disorder since service, and that the current complaints of headaches are not otherwise related to service. The Veteran sought medical treatment during active duty service in May 1984 for a scalp injury after walking into a helicopter rotor. He was observed to have a superficial scalp laceration with mild bleeding. The Veteran did not report headaches at that time and a neurological evaluation was within normal limits. His wound was cleaned and he was returned to full duty. During service in October 1985, the Veteran sought treatment for knee pain. He stated he was struck by a car while riding a bicycle. He did not report any trauma to the head, and no headaches or other neurological symptoms were reported at that time. In February 1986, he was seen for an ankle fracture and related injuries following a motorcycle accident. He did not specifically claim any head trauma, and no headaches or other neurological symptoms were reported at that time. On a January 1987 report of medical history completed at service separation, the Veteran explicitly denied any history of frequent or severe headaches. On a concurrent physical examination at service separation, he was found to be without any neurological abnormalities. On the question of whether any headache symptoms were chronic in service, the Board notes that, while the Veteran was treated in a scalp laceration in May 1984, this injury was described as superficial, and he did not report headaches at that time. Additionally, a neurological evaluation at the time of this injury was within normal limits. Furthermore, while he was involved in bicycle and motorcycle accidents in October 1985 and February 1986 respectively, he did not report headaches, head trauma, or any related neurological injuries or symptoms on those occasions. Finally, he did not report headaches or neurological on his subsequent service separation examination, or otherwise seek treatment for the same; to the contrary, he specifically denied any history of frequent or severe headaches on the concurrent report of medical history. The Board thus concludes that the weight of the evidence demonstrates that a headache disorder was not chronic during active duty service. The Board next finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a headache disorder since service separation, or onset of an organic disease of the nervous system characterized by headaches within a year thereafter. Following service separation in January 1987, the Veteran filed a VA compensation claim which was received in August 1987; however, he did not report or claim service connection for headaches at that time. The first reports of headaches dated to a September 1989 informal claim filed via the Veteran's Congressional representative, in which he claimed "severe headaches and memory lapse" since service. Such assertions, however, are inconsistent with, and outweighed by, other lay and medical evidence of record, including the more contemporaneous service separation medical examination and history given by the Veteran that was negative both for complaints or findings of headaches or other neurological symptomatology, the Veteran's August 1987 claim for service connection for unrelated disorders that did not include headaches, the Veteran's post-service histories of post-service onset of headaches, and an absence of record of complaints, findings, diagnosis, or treatment for headaches for years after service. An October 1989 VA general medical examination was afforded the Veteran, at which time he did not report headaches. On VA neurological evaluation in May 1995, the Veteran reported on initial questioning by the examiner that he had experienced headaches only for "the last couple of years," but later stated his headaches had begun in 1988. The Veteran also reported taking aspirin and other analgesics on a frequent basis, suggesting the possibility of abuse, according to the examiner. On physical evaluation the Veteran was without neurological defects. After speaking with and examining the Veteran, the examiner diagnosed chronic tension headaches, possibility secondary to analgesic abuse. The examiner determined a diagnosis of migraine headaches was not warranted. On VA examination in January 2009, the Veteran reported that his headaches began "in the early 90's." During the January 2010 hearing before a Veterans Law Judge, the Veteran testified that, following his motorcycle accident in service, he did not immediately experience headaches, though his headaches commenced shortly thereafter. Because the Veteran initially denied headaches at the time of service separation and immediately thereafter, and has been inconsistent in his reporting of the onset of his headaches, the Board does not find the Veteran's more recent assertions of in-service onset or continuous post-service headaches since service, which were made for VA compensation purposes, to be credible. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). As the Board does not find the Veteran's lay statements made within the record regarding in-service onset of symptoms or continuous symptoms of a headache disorder since service to be credible, they are afforded no probative weight. These statements are inconsistent with both contemporaneous in-service medical records, the Veteran's own contemporaneous in-service histories made for treatment purposes, the Veteran's contemporaneous history and complaints given at service separation, the Veteran's own initial August 1987 compensation claim that made no mention of headaches, and an absence of record of complaints, findings, or treatment for years after service. Thus, the Veteran's recent assertions of in-service onset of headaches and continuous headaches since service neither establish a nexus between the in-service accidents and any current headache disorders nor establish a continuity of symptomatology following service. As neither "chronic" in-service symptoms or "continuous" post-service symptoms of headache are demonstrated, presumptive service connection under 38 C.F.R. § 3.303(b) is not warranted. Likewise, as the evidence shows that an organic disease of the nervous system characterized by headaches did not manifest within a year after service, including to a compensable degree, presumptive service connection as a chronic disease under the provisions of 38 C.F.R. § 3.309(a) is not warranted. The Board next finds that the weight of the evidence demonstrates that the Veteran's current headache disorder is not otherwise related to active service. The Veteran was afforded a VA medical examination and opinion in May 2010. The claims file was reviewed in conjunction with this examination. Such review included the service treatment records and the in-service motorcycle accident was explicitly noted by the examiner. The Veteran was unable to state precisely when his headaches first began, according to the examiner, a VA neurologist. The May 2010 examination resulted in a medical opinion by the VA neurologist that the Veteran's current headaches were unlikely related to service or the service-connected back disability. Upon reviewing the claims file and examining the Veteran, the VA neurologist examiner diagnosed mixed feature headaches, of both the tension- and migraine-type. Regarding the cause of these headaches, the examiner reasoned that the service treatment records were negative for any evidence of in-service onset of the Veteran's headaches. The examiner also supported the opinion by indicating that he found "no medical grounds for relating his headaches to lumbar spine problems." The Board also finds the Veteran is not competent to testify regarding the etiological basis of his current headache disorder, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Lay testimony is not competent in the present case, because neither the Veteran nor the other lay persons are competent to state that headaches which had their onset years after service are attributable to any disease or injury which was incurred in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2008) n. 4 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The question of causation of a neurological disorder involves knowledge of a complex and nonvisible body system (neurological system), an understanding of how injury to the neurological system could result in headaches, knowledge of multiple other causes of symptoms of headache so as to eliminate other etiologies and differentiate headache symptoms from non-service-related etiologies. The Board does find the Veteran competent to report the chronicity of such observable symptomatology as headaches; but, in light of the normal neurological findings at service separation, the Veteran's own more contemporaneous histories denying headache at various times, and an absence of treatment or complaints of such symptoms for years following service, this testimony is considered less probative and less credible than the VA medical examiner's assessment and the other, more contemporaneous evidence of record. The Board again notes that on his report of medical history completed by the Veteran at service separation, he explicitly denied any history of frequent or severe headaches and, since that time, the Veteran's reports regarding the onset of his headaches have been inconsistent. Finally, the Board must also consider the Veteran's assertions that his headache disorder is either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. In March 2009, he was afforded a VA medical examination. The examiner, a VA physician, both personally examined the Veteran and reviewed the claims file, to include the service treatment records. According to the examiner, the Veteran stated that his headaches began in the early 1990s. A diagnosis of migraine headaches was rendered by the examiner. The examiner opined there was no nexus between the Veteran's current migraine headaches and his service-connected disability of the lumbosacral spine, reasoning that, within the medical literature, there existed "no evidence that degenerative disease of the lumbar spine can cause migraines." The May 2010 examiner also could indicated there were "no medical grounds for relating his headaches to lumbar spine problems." During the January 2010 hearing before a Veterans Law Judge, the Veteran stated that, due to the pain of his service-connected lumbosacral spine disability, he grinded his teeth on a regular basis. He further stated that the resulting tension in his teeth and jaw caused or contributed to his frequent headaches, and he was previously told of this nexus by his treating VA psychiatrist. Notwithstanding this recent testimony made for compensation purposes, the evidence shows no such statement by a VA psychiatrist or other medical expert. For the reasons already stated above, the Veteran's account of what he was told by such an expert, in the context of other inconsistencies in histories reported for VA compensation purposes, is not considered credible. Most recently in December 2011, the Veteran was afforded VA neurological examination, which resulted in the opinion that it was less likely than not that the Veteran's lumbosacral spine pain caused his headaches. The VA neurologist examiner reviewed the claims file, noting that, while the Veteran reported grinding his teeth on a frequent basis due to his low back pain, he experienced migraine headaches only on an occasional basis. Next, the examiner reviewed a database of medical literature, and found no evidence of a causal nexus between bruxism (teeth grinding) and lumbosacral spinal pain. The examiner reasoned that, while both low back pain and bruxism may appear in the same patient, there was no evidence that lumbar spinal pain causes bruxism. Regarding any nexus between bruxism and headaches, the examiner stated that, while a "temporomandibular disorder can serve as a trigger for an individual migraine attack, and even other forms of headaches," such a relationship was "not necessarily one causing the other, in a formal sense." Based on the opinions of the May 2010 and December 2011 VA medical examiners, which are uncontroverted in the record, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected lumbosacral spine disability either caused or aggravated his headache disorder. The Board also does not find the Veteran competent to provide evidence of an etiological nexus between his service-connected low back disability and his headaches, as the complex relationship between an orthopedic disability in one anatomical location of the low back and a neurological disorder with symptomatic headaches in a different anatomical location is not susceptible to lay observation. See Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). For the foregoing reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a headache disorder on any basis - direct, presumptive, or secondary - there is no reasonable doubt to resolve, and the claim for this disorder must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a headache disorder, to include as secondary to a service-connected disability, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs