Citation Nr: 1322294 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-31 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1954 to September 1956. This claim comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2011, the Board remanded the matter of entitlement to service connection for a headache disorder to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. The Board also remanded claims of entitlement to service connection for bilateral hearing loss and tinnitus in August 2011. In August 2012, an RO rating decision granted entitlement to service connection for bilateral hearing loss. In October 2012, an RO rating decision granted entitlement to service connection for tinnitus. The decisions granting entitlement to service connection for bilateral hearing loss and tinnitus terminated the Board's jurisdiction over those claims. After further evidentiary development was conducted for the matter of entitlement to service connection for headaches, the matter was returned to the Board. The matter was remanded again in December 2012 for additional evidentiary development, including another examination of the Veteran. After the development was completed, the matter was returned to the Board in June 2013. A review of the Virtual VA electronic records storage system does not reveal any additional documents not currently associated with the paper claims folder. The Veteran submitted new evidence to the Board in June 2013. He included a waiver of his right to have the RO consider the newly submitted evidence first, and also authorized the Board to consider the new evidence in the first instance. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is competent evidence of a present disability; a headache disorder, established by competent lay evidence. 2. There is competent evidence of an in-service incurrence of a disease or injury. 3. The evidence is against a finding of a causal relationship between the present disability and the disease or injury incurred during service. CONCLUSION OF LAW A headache disorder was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) states that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). A. Duty to Notify The VCAA states that VA must notify claimants of the evidence that is necessary, or would be of assistance in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The notice VA provides must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. §3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, notice was provided to the Veteran in June 2009, prior to the initial adjudication of his claim in August 2009. The content of the notice letter fully complies with requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agencies, or companies who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duty to notify the Veteran. B. Duty to Assist VA also satisfied its duty to assist the Veteran in the development of his claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. In this case, the RO requested the Veteran's service treatment records directly from the Records Processing Center (RPC), and from the Veteran in June 2009. The Veteran returned his VCAA notice response in July 2009, but did not submit any service treatment records at that time. The RPC responded to the RO's request for the records in July 2009, and indicated that they were fire related. The RO notified the Veteran in August 2009 that his service treatment records were destroyed in the fire at the National Archives and Records Administration in 1973, listed the actions it took to secure the records, and informed the Veteran of actions he could take to assist in processing his claim. The Board notes that the Veteran's service treatment records are presumed destroyed through no fault of the Veteran. When service treatment records are missing, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. .365, 367 (1991). The Board fulfilled this obligation. As for other treatment records, the RO associated all of the Veteran's private treatment records and VA examination records with the claims file. The Veteran submitted additional private treatment records to the RO in September 2011 and directly to the Board in June 2013. The later submission included a waiver of RO review. These records were associated with the Veteran's claims file at the Board. The Veteran did not identify additional sources of medical records other than those he submitted. Based on the foregoing, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Further, the duty to assist also includes providing an examination when warranted. "In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Thus, there are four elements to review to determine if a medical examination is necessary." McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (internal citations omitted). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. In this case, the record indicated that the Veteran may have a headache disorder with an onset in service that continued intermittently since that time. The claim was initially remanded in August 2011 for a VA examination on this issue in order to comply with McClendon. The VA examination was conducted in June 2012, and the matter was returned to the Board. The Board remanded the claim again in December 2012 for another VA examination on the Veteran's headache disorder. A VA examination was conducted in May 2013, and the matter was returned to the Board. The VA examination and its medical opinion substantially comply with the Board's remand order from December 2012, despite not specifically discussing whether there was any medical reason to accept or reject the Veteran's allegation that his current headache disorder first manifested during active service. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The VA examiner made the ultimate determination required by the Board remand, and opined as to whether the Veteran's headache disorder at least as likely as not had its onset in service or is related to service, which was sufficient to resolve the issue for which a VA examination was requested. D'Aries, 22 Vet. App. at 105; Dyment v. West, 13 Vet. App. 141, 146-47(1999). In addition, the VA examination was adequate, as the report sufficiently informs the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Thus, the VA satisfied its duty to provide an examination, and complied with the duty to assist. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits of the Service Connection Claim The Veteran contends that he has a headache condition that is related to his military service. As a Light Weapons Infantryman, the Veteran trained Koreans to fire a 57 recoiled gun used to disable tankers according to a statement he submitted in support of his claim in July 2009. He performed this duty without hearing protection, and asserts that he developed headaches that occur "off and on." The Veteran seeks entitlement to service connection for his headache condition. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303. To establish service connection for a present disability, the 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." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) In this case, the Veteran seeks service connection for a headache condition. He makes few statements regarding this condition other than his claim that headaches have occurred off and on. Resolving all reasonable doubt in the favor of the Veteran, the evidence still weighs against a finding that the Veteran's current headache disorder is related to the in service disease or injury. Therefore, the claim must be denied. Each element of service connection is discussed in more detail below. A. Present Disability The Veteran has established the first element of service connection for a headache disorder, which is the existence of a present disability (headaches), via competent lay evidence. To be "present" for purposes of entitlement to service-connection, 38 U.S.C.A. § 1110 requires "demonstration of symptoms at the time the application is filed." Disability refers to the impairment of earning capacity due to disease, injury, or defect, rather than the disease, injury, or defect itself. Palczewski v. Nicholson, 21 Vet. App. 174, 178 (2007). Existence of a present disability may be shown by competent medical evidence or competent lay evidence, including the Veteran's own testimony. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the lay evidence in the record, the Board finds that it is competent and sufficient to establish a diagnosis of a present disability, the first element of service connection. In this case, the Veteran indicated in his June 2009 initial claim that he had headaches in service since 1954. At his May 2013 VA examination, the Veteran complained of headaches 1 - 2 times per week, and also reported a diagnosis of non-specific headaches, obtained "? years" before the May 2013 VA examination, from a doctor he did not identify despite multiple requests for information about treatment he received for the condition. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headache disorder meets the definition of a "present disability." The Veteran reported headache symptoms, was competent to identify the condition at the time his claim was filed, and was competent to report a contemporaneous diagnosis. Therefore, the Veteran has established his present disability as a headache disorder. The Board also notes here that the Veteran is not entitled to service connection on a presumptive basis for his present headache disorder. 38 C.F.R. §§3.307, 3.309 (2012). There is no evidence that the claimed headache disorder had manifested to a compensable degree within one year of separation from service, so service connection is not warranted on a presumptive basis in this case under 38 C.F.R. §§ 3.307 and 3.309. B. In Service Incurrence/Aggravation Turning to the second element of service connection, the evidence presented supports a finding of in-service incurrence of an injury. After consideration of the places, types, and circumstances of the Veterans service as reflected in his official service record, the Board finds that the Veteran was exposed to in-service loud noises and thereby incurred an in-service injury. 38 U.S.C.A. § 1154(a). The Veteran's Form DD-214 reflects service as a Light Weapons Infantryman. The Veteran also reported that during his military service, he taught others to fire a 57 recoiled gun to disable tankers without hearing protection. He has not provided any other information regarding the origin of his headache disorder, despite requests for additional information. With the resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran engaged in duties during his military service that support a finding that he was exposed to loud noises during service and may have incurred an in-service headache condition. C. Nexus Finally, the Veteran must show "a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) There is conflicting evidence in the record on the issue of a nexus that must be considered. Evidence that supports the Veteran's nexus arguments includes the Veteran's lay statements concerning his headache disorder. The Veteran contends that military service where he taught others to fire a 57 recoiled gun to disable tankers, without hearing protection, caused his current headache disorder. The law allows that a Veteran's lay opinion could be sufficient to serve as the required nexus for his claim, as there is no categorical requirement of "competent medical evidence...[when] the determinative issue involves either medical etiology or a medical diagnosis." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran's statements do not provide a medical etiology for a headache disorder because, in part, he never claims that he was diagnosed with a headache disorder in service. There are also other factors and circumstances affecting the Veteran's health, including a Berry aneurysm in his middle cerebral artery requiring surgery in May 1984, and later treatment intermittently for vertigo and dizziness. This evidence was considered by the VA when he addressed the question of whether the Veteran's in-service injury was the cause of the Veteran's current headache disorder. As such, this is a case where the medical issue is beyond the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Veteran has not demonstrated, nor does the record show, that he has the training and experience required to identify the etiology of his headache condition, so he is a layperson in this respect. Thus, the Board finds that the Veteran is not competent to provide the nexus opinion in this case, so his opinion will not be assigned evidentiary weight. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The evidence against the claim includes a VA examination conducted in May 2013. The VA examiner opined that the claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. As for rationale to support the opinion, the VA examiner indicated that the Veteran did complain of "off and on" headaches about 1 - 2 times per week, for which he takes Tylenol on a PRN basis. He noted that the Veteran was not on headache/migraine medication." The examiner found it significant that there were no documented diagnoses of migraine or any other type of headaches, and the Veteran has not been to a physician for prostrating headaches. According to private treatment notes, an examination was negative for headaches in April 2009, and the Veteran denied headaches at May and June 2009 treatment visits. An ear, nose, and throat report from May 2009 stated that the Veteran denied having any headaches. In addition, the VA examiner indicated in the report that he reviewed the claims file, and conducted an in-person examination of the Veteran. The May 2013 medical opinion included in that examination report is adequate, as the report sufficiently informs the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Veteran's record was reviewed, and the report contains clear conclusions with supporting data, with a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21Vet. App. 120, 124 (2007). The Board finds this medical opinion is sufficient, and accords it significant probative weight, as it considered the Veteran's reported history within the private treatment records where the Veteran denied headaches just prior to filing his claim, considered the evidence in the claims file and the Veteran's reported history after filing his claim, and concluded that the evidence was against a finding that the nexus element was met. To the extent that the Veteran argues continuity of symptomatology from his claimed headaches in service to his present headaches, the Board does not find this argument persuasive. A claimant may establish the second and third elements to satisfy the standard three-element test for service connection by demonstrating continuity of symptomatology, but only for the limited number of chronic diseases identified in the regulation, as explained in Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b) (2012). Here, the Veteran's headache disorder, if considered an organic disease of the nervous system, does not exhibit the continuity of symptomatology required to prevail under this theory. Private medical treatment records from May and June 2009 show that the Veteran denied having headaches when he sought treatment for vertigo and dizziness prior to filing his claim in July 2009. At the Veteran's June 2012 VA examination, he stated that he did not have any diagnosis of migraine or any other type of headaches. Yet at his May 2013 VA examination, he stated that he was diagnosed with non-specific headaches for "? years," according to the examination report. Finally, none of the medical records presented include a diagnosis of a headache disorder. All these factors weigh against a finding of service connection via continuity of symptomatology for the Veteran's headache disorder claim. As for the evidence submitted directly to the Board for it is consideration in June 2013, the evidence includes private treatment records from March 2007 to April 2009 from an unlisted source. The records of treatment for vertigo and dizziness do not indicate that the Veteran has a headache disorder. They do not include an opinion on the nexus between the Veteran's headache disorder and service. In sum, these records provide similar evidence to private treatment records submitted much earlier in the claim, and do not add to the analysis. Based on the foregoing, the Veteran is not entitled to service connection for his headache disorder. The evidence is against a finding that there is a nexus between the headache disorder and his in-service exposure. Consequently, entitlement to service connection for the Veteran's headache condition is not warranted. ORDER Entitlement to service connection for a headache disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs