Citation Nr: 1320890 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-49 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to January 1996, and from September 2003 to December 2004, with service in the Army National Guard between her first and second periods of active duty. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2013, the Veteran presented evidence and testimony at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's VA claims folder. FINDING OF FACT Prior to service, the Veteran is shown to have had headaches; the Veteran's preexisting headaches did not chronically worsen or increase in severity during service. CONCLUSION OF LAW Headaches were not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that service connection is warranted for headaches. She asserts that she had non-migraine-type headaches prior to service, and that she developed more severe migraine headaches during service. As an initial matter, the Veteran does not assert, and there is no evidence to show, that headaches were caused or aggravated by her first period of active duty, between October 1995 and January 1996. Therefore, this period of active duty will not be further discussed. Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 C.F.R. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The appellant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003, 69 Fed. Reg. 25,178 (2004); see also Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A preexisting injury or disease has not demonstrated "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307. There is no entrance examination report of record for the Veteran's second period of active duty, therefore, the Veteran is entitled to a presumption of soundness at service entrance as to her headaches. Crowe. Therefore, the Board must determine whether the presumption of soundness is rebutted by clear and unmistakable evidence. See 38 U.S.C.A. § 1111; Cotant; VAOPGCPREC 3-2003. The Veteran's service treatment reports are summarized as follows: a "5-year" examination report, apparently created in association with National Guard duty, dated in June 2001, which shows that she was noted to have tension headaches, and to use Midrin. The associated "report of medical history" shows that she indicated that she had frequent or severe headaches, which were further characterized as complaints of daily headaches, with nausea, for two weeks, with use of Aleve and Advil for migraine. Service treatment reports dated during the Veteran's second period of active duty include a health questionnaire for dental treatment, dated in September 2003, which shows that the Veteran did not mark a box to indicate that she had frequent headaches. A pre-deployment health assessment report, dated in September 7, 2003 (just five days after entrance into her second period of active duty), notes that the Veteran was to be sent for an FP (family problems) evaluation of her migraine headaches (there are no records to show that this was ever done). In November 2003, the Veteran complained of a one-month history of symptoms that included headaches and menstruation concerns. The report notes that her headaches were "not new," that they don't seem to be related to menses, and that they resolved with three Alleve. The relevant assessment was cephalgia. She was given Naproxen prn (as occasion requires). In February 2004, she was treated on two occasions for complaints of an "on and off" one-year history of migraine headaches which began in association with symptoms for a wisdom tooth. She also complained of back pain. She was given Toradol. The assessment was migraines. On another occasion that same month, she was treated for symptoms that included facial numbness, tingling, swelling, slight headache, and tightness in her chest. She stated that she had taken Pamprin the night before for cramps. The assessment was possible allergic reaction to Pamprin. In April 2004, she was treated for complaints of a one-hour history of vomiting, a painful chest, and migraine headache. The assessment was migraine headache. A September 2004 report shows complaints of back ache, pelvic cramps, and headache. The assessment was UTI (urinary tract infection). A November 2004 "report of medical assessment" shows that the Veteran indicated that her health was worse when compared to her last assessment, with notations of "headaches, breathing, back and feet." A post-deployment health assessment report notes service in Southwest Asia (Iraq and Kuwait) from November 2003 to November 2004, and that the Veteran indicated that she currently had headaches, but that she did not have headaches during her deployment. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2005 and 2012. VA progress notes, dated between 2005 and 2012, show that in April 2005, the Veteran complained of severe migraine headaches which had "flared up significantly" during duty in Iraq. The relevant assessment was migraine headaches. In March 2006, she again sought treatment for complaints of headaches. The assessment was migraines and likely some mild more frequent tension headaches. In January 2007, the Veteran was treated for complaints of a headache. She received additional treatment for headaches in August 2008; thereafter, she received multiple treatments for headaches. The impressions included headaches of unknown etiology. A VA examination report, dated in July 2008, shows that the examiner stated that the Veteran's C-file had been reviewed. The report shows that the Veteran reported that her headaches began in July 2003. She described them as feeling like her head was being squeezed, with nausea, but without emesis, phonophobia, or photophobia. She estimated that she had had 10 headaches in the past six months that were incapacitating. The assessment was common migraine with weekly headaches and one to two prostrating attacks a month. Reports from the Mississippi Headache Center, dated in 2008, show that the Veteran received a number of treatments for headaches, with the use of multiple medications. These reports contain impressions that include abscess tooth, acute sinusitis, and migraines. A VA neurological examination report, dated in May 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: the Veteran has migraine headaches. She reported that her headaches started in June or July of 2003, with no precipitants except being out in the heat and strenuous physical exercise. She denied a history of head injury. She complained of headaches localized behind her eyes, more on the right side, that migrate to the left or over to the back of her head when they got bad. They occurred at any time, have awakened her from sleep, recur one to three times weekly, and last two to seven days. They had a stabbing sensation and there was associated nausea with rare emesis and phono/photophobia. She had taken several medications for her headaches. The examiner noted that the Veteran reported having migraines several times a week with prostrating attacks every couple of months. The examiner indicated that headaches were less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner explained that the Veteran's service treatment records showed that she had headaches prior to entrance into active duty, that her headaches were first reported in 2001, at which time they were noted to be tension headaches, or just headaches. The examiner further indicated that the Veteran's headaches were clearly and unmistakably not aggravated beyond their natural progression by service. The examiner explained that the Veteran had frequent severe headaches prior to service diagnosed as tension headache, which may or may not be accurate. The examiner explained that the frequency of migraine headaches varies over time. Heat, humidity, stress, certain foods, or smells, and chemical exposure, may trigger a migraine but removal from exposure removes the trigger, there is no material change to the underlying headache disorder. There is no history of an event in service, such as a head injury, which might be expected to materially change her underlying headache disorder. The examiner concluded that it is therefore unlikely that service caused her migraine, or materially changed her underlying headache disorder. The claims file includes a statement from someone who asserts that he/she was the Veteran's squad leader during service, and that the Veteran was treated for migraine headaches during service that were worse than her headaches prior to service. As an initial matter, the Board finds that the Veteran is not a credible historian. Although the Veteran has, at times, argued that she had non-migraine-type headaches that existed prior to service, that worsened into migraine-type headaches, she has also repeatedly asserted that her headaches began during service, without qualification. Specifically, she has asserted that her headaches began in July 2003, or in October 2003. See Veteran's claim (VA Form 21-526), received in June 2008; July 2008 VA neurological examination report; December 2008 VA progress note. On other occasions, she has asserted that her headaches began in 2003, without specifying the month. See VA progress notes, dated in October and November of 2008; August and September of 2010. In this regard, a July 2008 report shows that she reported a six-to-eight year history of migraine headaches (i.e., prior to service). In addition, as discussed infra, the Board has determined that her headaches clearly and unmistakably preexisted her second period of active duty. See e.g., June 2001 service examination report, and the associated report of medical history. The evidence shows that in June 2001, the Veteran indicated that she had frequent and severe headaches. At that time, her headaches were characterized as "daily" in frequency, and as both tension and migraine headaches. This evidence also shows that she took three medications for control of her symptoms (i.e., Aleve, Advil, and Midrin). Furthermore, service treatment reports show that she was sent for evaluation of her migraines just five days after entrance into her second period of duty. See pre-deployment health assessment, dated September 7, 2003. The Board therefore finds that she is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Board finds that the evidence shows that the Veteran's headaches clearly and unmistakably existed prior to service. The June 2001 service examination report, which is dated over two years prior to entrance into her second period of active duty, notes that she has tension headaches, with use of Midrin, and the associated "report of medical history" shows that she indicated that she had frequent or severe headaches, which were further characterized as complaints of daily headaches, with nausea, with use of Aleve and Advil for migraine (emphasis added). In addition, a pre-deployment health assessment report, dated in September 7, 2003 (just five days after entrance into her second period of active duty), notes that the Veteran was to be sent for an evaluation of her migraine headaches (there is no indication that this was ever done). Finally, the May 2012 VA examiner concluded that the Veteran's headaches "clearly and unmistakably" pre-existed her service. This opinion is considered to be highly probative, as it is shown to have been based on a review of the Veteran's C-file, and the examiner's opinion is accompanied by a sufficient explanation. Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, there is no competent and probative countervailing etiological opinion of record. The Board therefore finds that there is clear and unmistakable evidence that the Veteran's headaches pre-existed her service. The next question is whether there is clear and unmistakable evidence that the Veteran's headaches were not aggravated by service. See Wagner, 370 F.3d at 1089. The Board finds that there is clear and unmistakable evidence that the Veteran's headaches were not aggravated by service. The Veteran's service treatment reports have been discussed. The Veteran is shown to have had daily headaches, to include migraine headaches, prior to her second period of active duty. Although she was treated for headaches on several occasions during service, a preexisting injury or disease has not demonstrated "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307; see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Overall, the post-service medical evidence shows that the Veteran was first treated for headaches in April 2005, which is about four months after active duty service. She received additional treatment thereafter, with significantly lengthy gaps in treatment, i.e., followed by treatment about 11 months later (in March 2006), followed by treatment about nine months later (in January 2007), followed by treatment about one year later (in January 2008), with multiple treatments thereafter. Of particular note, the May 2012 VA examiner concluded that the Veteran's headaches were clearly and unmistakably not aggravated beyond their natural progression by service. This opinion is considered to be highly probative, as it is shown to have been based on a review of the Veteran's C-file, and the examiner's opinion is accompanied by a sufficient explanation. Prejean; Nieves-Rodriguez. The Board notes that there is no evidence of increased pathology to support the claim, no evidence of a history of trauma during service, and that there is no competent and probative countervailing etiological opinion of record. Given the foregoing, the Board finds that the claims files contain clear and unmistakable evidence that the Veteran's preexisting headaches were not aggravated by her service. See 38 U.S.C.A. § 1111; Cotant. Accordingly, the claim must be denied. With respect to the Veteran's own contentions, and the lay statement, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's preexisting headaches were aggravated by service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board has determined that the service and post-service medical evidence outweighs the Veteran's contentions, and the lay statement, to the effect that the Veteran has headaches that are related to her service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in July 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations, and etiological opinions have been obtained. In particular, the May 2012 VA opinion shows that the examiner stated that he had reviewed the Veteran's records, and the examiner's conclusions are accompanied by sufficient rationales. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean, 13 Vet. App. at 448-9. Given the foregoing, there is no basis to find that a remand for another examination or opinion is required. See 38 C.F.R. § 3.159(d). Thus, VA has properly assisted the Veteran in developing the claim. As noted above, the Veteran was provided with a vidoeconference hearing before the undersigned Veterans Law Judge in February 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. Specific testimony was elicited regarding the nature and severity of the Veteran's headaches. As such, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs