Citation Nr: 1321895 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-39 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for headaches 2. Entitlement to service connection for dizziness. 3. Entitlement to service connection for fainting. 4. Entitlement to service connection for lack of coordination. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION Service department records included in the claims file show active duty from May 13, 1999, to July 31, 1999, December 28, 2001 to June 1, 2002, February 22, 2003 to August 30, 2003, November 24, 2006 to January 6, 2007, and from June 21, 2008 to August 22, 2008. He reportedly was ordered back to active duty in 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in April 2011 for further development. Subsequently, in September 2012, the RO granted service connection for major depression with memory loss, confusion, and anxiety, and so the issues of service connection for depression, memory loss, anxiety, and confusion which were previously on appeal have been granted and are no longer on appeal. The Board views the RO's inclusion of the confusion issue in the most recent supplemental statement of the case as an administrative error. As a result of rating actions to date, the Veteran's combined service-connected disability rating is 100 percent, effective from August 29, 2008. FINDINGS OF FACT 1. Migraine headaches were manifest to about a degree of 10 percent within one year after the Veteran's February 2003 to August 2003 period of active service. 2. The Veteran does not have a disorder or disorders causing dizziness, fainting, and/or lack of coordination. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for disorder(s) causing dizziness, fainting and/or lack of coordination are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2008. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the claims in May 2011; and afforded the Veteran the opportunity to give testimony before the Board. The VA examination report contains opinions with rationales. The examination was adequate. The evidence of record provides a basis to render a fair and impartial determination of the claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Although certain records regarding duty status were not able to be located pursuant to the Board's remand, there are DD Form 214's of record sufficient to show active duty and to allow for appellate review. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic disease of the nervous system (including migraine headaches), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Service treatment records are silent for reference to headaches, dizziness, fainting, and lack of coordination, except for an instance of a headache with other symptoms in January 2003, when viral syndrome was assessed; and (according to the November 2008 rating decision) for the Veteran's report of incoordination in August 2007, when there were normal findings on testing. On multiple occasions found in service treatment records through July 2008, the Veteran indicated that he was in very good health, denied pertinent symptoms, and was found to be normal and without need for referral. In July 2008, he indicated that he was in very good health. As for headaches, Dr. Willesen treated the Veteran apparently in March 2004. He indicated that he had had throbbing headache almost daily, and that he had had that since at least October 2003. Dr. Willesen felt that his headaches appeared to be migraines. The VA examiner in May 2011 reviewed records and noted that the Veteran reported headache symptoms had been diagnosed as migraine headaches in records reviewed. The examiner found the Veteran to have migraine headaches currently. As migraines appear to have been manifest to a degree of about 10 percent within a year after the Veteran's period of active service of more than 90 days from February 2003 to August 2003, service connection for migraines is warranted under the 1-year presumptive service connection rule at 38 C.F.R. §§ 3.307, 3.309. Reasonable doubt is resolved in the Veteran's favor under 38 U.S.C.A. § 5107(b) (West 2002). As for dizziness, fainting, and lack of coordination, these were not actually found in service. Although on June 2004 private evaluation, the Veteran complained of vertigo and incoordination after anthrax vaccine, and in August 2007, he reported essentially the same symptoms, a review of the evidence reveals that no disorders causing dizziness, fainting, and/or lack of coordination are diagnosed currently. On VA examination in May 2011, the examiner noted that the Veteran reported that he would get dizzy if he gets up to fast, and has a lack of coordination at times. However, the examiner indicated that there was no specific diagnosis for these complaints. In other words, they are complaints without an underlying disorder diagnosis. The Court has held that in the absence of a currently diagnosed disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). In light of the above, service connection is not warranted for disorder(s) causing dizziness, fainting, and/or lack of coordination. ORDER Service connection for migraine headaches is warranted. To this extent, the appeal is granted. Service connection for disorder(s) causing dizziness, fainting, and/or lack of coordination is not warranted. To this extent, the appeal is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs