Citation Nr: 1322088 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-05 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for chronic cervicogenic headaches. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1969 to April 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in part, denied the Veteran's claims of entitlement to service connection for chronic cervicogenic headaches and a TBI. Jurisdiction of the case has since been transferred to the RO in Portland, Oregon. In March 2012, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In January 2013, the Board remanded this matter for further development, which has been completed and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. The competent evidence does not link the Veteran's headaches to his service, to include a fall during service. 2. The Veteran does not have residuals of a TBI related to service. CONCLUSIONS OF LAW 1. Headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2012). 2. Residuals of a TBI were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in January 2013. The Board instructed the Appeals Management Center (AMC) to provide the Veteran with an examination to determine the nature and etiology of his disorders and to readjudicate the claim. Subsequently, the Veteran was afforded an examination in February 2013, and his claims were readjudicated in a February 2013 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in November 2007, prior to the June 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, the Veteran was provided with a VA examination in February 2013. Review of the examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Also, as noted above, the Veteran presented testimony in a travel board hearing before the undersigned. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the March 2012 hearing before the Board. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate these service connection claims. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he currently has chronic cervicogenic headaches and residuals of a TBI related to service. He asserts that while stationed in Korea during service, he fell into a stone ditch hitting his head. He indicated that the fall "actually knocked [him] out for a couple of days." See March 2012 Hearing Transcript at page 3. The Veteran testified that he did not get treated right away after this accident, but rather two days later and that he was not treated for a head injury. Id. at page 4. Instead, he was treated for the concurrent injury to his leg at that time. Id. at page 5. The Veteran also reported that he has had cognitive problems (e.g. memory issues) and headaches ever since this accident. Id. at page 8. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronic Cervicogenic Headaches The record reflects that the Veteran has met Hickson element (1), current disability. The February 2013 VA examination report record shows diagnoses of migraines with visual aura, chronic tension heads, likely cervicogenic in nature, and sinus headaches. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, the Board notes that a review of the service treatment records confirms that in April 1971, the Veteran was treated for a leg injury, consistent with his testimony. Additionally, the Board notes that the Veteran, as a lay person, is competent to testify as to his in-service accident and headaches ever since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Therefore, Hickson element (2) is satisfied. With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current headaches and his military service is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The February 2013 VA examiner opined that it was less than likely that the Veteran's migraine with visual aura began during service or was due to an in-service TBI. As to chronic tension headaches, likely cervicogenic in nature, the examiner found that it was less than likely that it began during service or was due to an in-service TBI, and medication overuse likely contributed to his frequent headaches. Finally, as to sinus headaches, the examiner indicated that they were related to chronic sinusitis and less than likely service-related. The Board finds the February 2013 examination report to be highly probative as it was based on a thorough review of the Veteran's medical history and cited to the relevant evidence of record. The opinion is also consistent with the other evidence of record which does not demonstrate that the Veteran's various headaches are related to service. For example, in the context of the Veteran's February 2013 TBI examination, the examiner spoke generally of the Veteran's complained of headaches. He noted that the now-reported fall in service with injury to the head was not reported by the Veteran at the time, and is not documented by the service treatment records. He relied on the 1971 exit examination, at which the Veteran denied headaches and did not mention neck or head pain, which argued against there being any significant residuals from the alleged fall. Despite having various private treatment records indicating diagnoses of headaches and migraines, the examiner also found it notable that in none of the records was it documented that the Veteran reported the injury in service or pain since that time. The Board finds that the examiner's reasoning is well-explained and supported by the record. For these reasons, it is highly probative evidence in the appeal. The Veteran has been accorded ample opportunity to present competent evidence in support of the claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). Indeed, there is no competent evidence of record showing that the Veteran's various headaches are related to service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's headaches are related to service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorder, which affects a complex part of the body, namely the inner workings of the brain. While he is competent to report what he experienced, the Veteran is not competent to ascertain the etiology of his current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the VA examiner's opinion that was rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. Additionally, as to the Veteran's assertions as to having had headaches ever since service, the Board finds that these statements, while competent, are nonetheless not credible. Significantly, the Veteran denied having/ever having frequent or severe headaches at service separation. This is not a case in which the Veteran's service treatment records are merely silent on the matter under consideration. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Rather, the record reflects that he expressly denied such symptomatology. Furthermore, there is no documented evidence of any complaints of headaches until 2003. Emphasis is placed on the gap between the date of service separation in 1971 and initial documented evidence of problems in 2003. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Notably, a July 1971 VA general medical examination report showed a normal neurological evaluation and reflected no complaints of a headache disorder or related symptoms. There is simply no evidence, other than statements from the Veteran to support the assertion that he had headaches ever since in-service accidents. For the reasons set forth above, however, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Based on the foregoing, Hickson element (3) is not met, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for headaches is not warranted. TBI As to Hickson element (1), current disability, as noted in the Board's January 2013 remand, an August 2004 report showed that electroencephalogram was probably mildly abnormal with evidence for left temporal irregular activity which occasionally had a sharp contour and yet did not specifically phase reverse. It was also noted that it was difficult to evaluate the right temporal region. Due to the ambiguity of evidence and pursuant to the Board's remand, the Veteran was afforded another examination in February 2013. Following extensive evaluation of the Veteran, the VA examiner determined that a diagnosis of a TBI was not supported. The examiner indicated that there were no objective signs of a TBI on a 2007 brain MRI, or evidence to support any residuals from the in-service fall. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for a TBI is not warranted. The Veteran, as a lay person, is competent to note what he experiences, including symptoms. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, the question as to whether he has any objective residual brain damage of TBI is a complex medical question unlike testimony as to his experiencing the symptoms of headaches. Likewise, it is different from a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation. That is, appropriate expertise is required to determine whether the Veteran has residuals of a TBI. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render neurological findings. While the Veteran is competent to report what he experiences, he is not competent to ascertain the diagnosis of any neurological disorder as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight to the objective evidence of record (including interpretation of an MRI report) and the findings as determined by a trained medical professional specializing in neurology over the Veteran's lay assertions. Based on the evidence, Hickson element (1) is not met. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for residuals of a TBI is denied. ORDER Service connection for chronic cervicogenic headaches is denied Service connection for residuals of a TBI is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs