Citation Nr: 1323210 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 95-23 163 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from June 1983 to July 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, denied service connection for headaches. In March 1999, the Board remanded the case to the RO for evidentiary development. In a May 2005 decision, the Board denied the Veteran's claim of service connection for headaches. The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In June 2006, the Veteran's representative and VA General Counsel filed a joint motion for remand. The Court granted the joint motion later in June 2006 and, in September 2006, the Board remanded the case for further development. In August 2009, the Board again denied the claim of entitlement to service connection for a headache disability. The Veteran appealed to the Court, and a joint motion for remand was submitted by the parties to the appeal in May 2011. Later in May 2011, the Court granted the joint motion and remanded the case to the Board for readjudication consistent with the motion. The Board remanded the claim for additional development in December 2011 and February 2013 to ensure all VA treatment records were of record. A review of the Virtual VA paperless claims processing system shows that the updated VA treatment records are of record. The agency of original jurisdiction (AOJ) considered these records in an April 2013 Supplemental Statement of the Case. FINDING OF FACT The Veteran does not have a chronic headache disability attributable to military service. CONCLUSION OF LAW The Veteran does not have a headache disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision has been accomplished. Through a February 2002 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. By an October 2006 notice letter, the RO provided the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the claim was properly re-adjudicated by the agency of original jurisdiction (AOJ) in February 2008 and multiple times since then, after the notice letters. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the February 2002 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In October 2006, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. Service treatment records and VA treatment records beginning in 1998 from multiple VA Medical Centers have been obtained. The Veteran was afforded an examination in April 2013. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the examiner did not list a July 1998 VA treatment record and December 1999 VA examination showing compliant of headache. However, given that numerous treatment records from 1998 until approximately 2006 are silent for headaches, the omission is immaterial and does not render the overall medical opinion inadequate. Also, the April 2013 VA examiner referred to a negative August 2006 CT head scan. VA treatment records do not include a copy of the CT scan, but reflect a reference to it in July 2006 VA primary care records. The subsequent medical or lay evidence does not in any way suggest that the Veteran had pertinent findings from the CT scan. Consequently, a remand to obtain a copy of the August 2006 CT scan is not necessary. 38 C.F.R. § 3.159(d). In June 2013, the representative objected to the April 2013 VA examination. He contended that the examiner provided a non-opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Although the examiner used the term "speculation" in his rationale, he clearly agreed with the statement that it was less likely the disability was related to service. In fact, as noted in the analysis below, he indicated that speculation would be required to say that the headache disability was in fact related to service, which is far different from saying that speculation or conjecture would be required to arrive at any opinion. Overall review of the examination report shows that the examiner clearly expressed a negative opinion and provided a detailed discussion. He stated that it was possible the in-service head injury could lead to headaches, but in the absence of continuing headache reports he declined to find a nexus to service. In other words, his rationale was that the Veteran had multiple opportunities to report headaches at his numerous primary care type visits, but only provided isolated reports over many years. He additionally observed that the appeal for compensation was pending during a 2006 report, which provided a motive to report headaches. For these reasons, he found the Veteran's assertions incredible. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). For the reasons set forth above, the Board considers the April 2013 VA medical opinion to be adequate. The record reflects compliance with prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The AOJ received a February 2013 response from the White Junction VAMC granting full access to the request for records beginning in January 2003. An April 2013 VA examination report was obtained. The AOJ re-adjudicated the claim in April 2013. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis The Veteran contends that his current headaches are related to service. Initially, he attributed them to Gulf War Syndrome. (See March 1995 Veteran statement). He later asserted that they were related to a 1993 in-service head injury. (See January 2001 Veteran statement). Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008). In general, service connection requires: medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The United States Court of Appeals for the Federal Circuit has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition such as headaches, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A review of the Veteran's STRs reveals that he was treated for headaches twice while on active duty. In July 1985, he complained of headaches and visual problems and was diagnosed with conjunctivitis. In October 1987, he complained about headaches; however, no diagnosis was provided. The Veteran sustained a head injury in May 1993 during a fight. Treatment records from Liberty Memorial Hospital indicate he was treated for a laceration of the frontal scalp. A November 2002 administrative decision by the RO concluded that the head injury was sustained in the line of duty and was not the result of the Veteran's willful misconduct. Accordingly, for purposes of analysis, it is considered an in-service injury. 38 C.F.R. § 3.303. VA treatment records from July 1998 reflect that the Veteran complained about a headache. No further description as to history or frequency was given. The Veteran had clinical visits on numerous subsequent occasions without any reports of headaches. (See VA treatment records from September 1999, December 2001, July 2002, January 2003, June 2003, and August 2005). Significantly, a July 2002 medical treatment record from the Wilmington VAMC indicates that the Veteran denied head trauma, headaches, dizziness, or visual changes. He also denied headaches at his June 2003 primary care visit. The RO contacted the Veteran in May 2001 and February 2002 to request all medical records for headache treatment. He responded in February 2002 with a statement indicating that he had headaches and that his head injury was irritating and sore. He did not provide any information regarding any medical treatment he had received for his claimed chronic headache disability. The Veteran has been afforded several VA examinations in connection with other claims not on appeal. At a November 1993 examination, the Veteran complained about recurrent frontal headaches, which were aggravated by a recent head injury. The VA examiner did not give any further assessment. At a December 1999 examination, the Veteran reported that he had headaches several times a week. The examiner diagnosed the Veteran with a scar on his scalp and asthma. The VA examiner did not relate any headaches to a head injury or to military service. Review of VA treatment records show that the Veteran acknowledged having headaches without further description in July 1998. He reported having headaches several times a week at a December 1999 VA examination. In January 2008, he reported headaches in the context of treatment for bronchitis. These reports must be considered in light of the numerous medical records that are either silent for headaches or show him affirmatively denying headaches. (See VA treatment records from September 1999, July 2002, January 2003, June 2003, December 2004, August 2005, May 2011, October 2011, and April 2012). In seeking treatment for medical problems, the Veteran had many opportunities to report the putative chronic headaches, but did not do so. Buczynski, 24 Vet. App. at 224. In fact, VA treatment records from July 2002, June 2003, and May 2011 show that the Veteran affirmatively denied having headaches. The Veteran had another VA examination in April 2013. He reported having headaches on the right side of his head. They were mild and lasted up to two or three days. They occurred twice a month. He reported that he had not sought medical attention because it was mild. He had a head injury in service from being hit with a board during a fight. He had a laceration, but did not lose consciousness. The examiner noted that an August 2006 CT head scan was normal. (The Board notes that the CT scan report itself is not available, but referenced in July 2006 primary care treatment records found within Virtual VA. None of the subsequent records suggest any unusual findings were made based upon the August 2006 CT head scan). The April 2013 examiner expressed a negative opinion. He noted the Veteran's reported history of headaches following the in-service fight. After review of the claims folder and electronic record, he could only find a 2006 compliant of headaches. He noted that the Veteran did not complain about any headache at a recent 2012 primary care visit. He questioned the Veteran's veracity in reporting headaches in 2006 due to the pending appeal for monetary benefits. He concluded that the medical records did not show headaches as an ongoing chronic problem. Because of the lack of supporting medical evidence, he believed it would be speculative to relate headaches to service. The record shows that the Veteran had a head injury in-service and two instances in service where he reported headaches to healthcare providers. His current assertions of headaches are sufficient to show a current disability. The issue, therefore, is whether his current headaches are related to service. The preponderance of the evidence is against finding a nexus. The favorable evidence is limited to the Veteran's reports. He is certainly competent to describe his current symptoms and history of headaches. However, the issue is whether his reports are credible with consideration of the entire record. It is the Board's fundamental responsibility to evaluate the probative value of all evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). The Board observes that the Veteran had sought medical attention on numerous occasions for common maladies over the past decade. He has clearly demonstrated that he is well able to report for medical treatment and relate medical problems to treating healthcare providers. (See VA treatment records from 1998 to 2012). However, he provides minimal reports of headaches to treating clinicians. As the VA examiner noted, had the Veteran indeed experienced a chronic, ongoing headache problem, he would have been expected to report such difficulties on a much more frequent basis as opposed to the isolated reports he has given. He has also affirmatively denied having headaches on several occasions. (See VA treatment records from July 2002, June 2003, and May 2011). The Board finds his assertion of continuity of headaches to be incredible in light of his lengthy healthcare record with so few reports of headaches. Buczynski, 24 Vet. App. at 224; Cartwright, 2 Vet. App. at 25; Caluza, 7 Vet. App. at 510-511; Madden, 125 F. 3d at 1481. In addition, the Board finds the negative assessment given by the April 2013 examiner persuasive. He clinically examined the Veteran, reviewed the claims folder, and provided a negative opinion with a detailed rationale. The rationale is plausible and uncontroverted by any other medical opinion. The examiner provided reasons for not believing the Veteran's report of chronicity. The Board considers it persuasive evidence against a nexus to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In summary, when all of the evidence of record is considered, the evidence weighs against a nexus to service. VA has conceded that the Veteran sustained a head injury while serving on active duty; however, the record does not show that the Veteran has a chronic headache disability related to the in-service trauma. The Board also recognizes that the Veteran has alternatively argued that a headache disability is the result of undiagnosed illness due to his having served in the Persian Gulf War. In such cases, VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability. 38 C.F.R. § 3.317 (2012). A qualifying chronic disability includes undiagnosed illnesses. Id. Headaches can be signs or symptoms of undiagnosed illness. Id. However, there is no indication in this case that there has ever been any objective indication of such a qualifying disability based on the complaint of headaches. Indeed, implicit in the November 1993 examiner's report is the indication that headaches about which the Veteran complained were due to a diagnosed disability--sinusitis. No examiner or care provider has intimated that the Veteran has an illness manifested by headaches, and demonstrated by objective indications, that it is not diagnosed. Consequently, the Board finds that the preponderance of the evidence is against this claim, even when presumptions of 38 C.F.R. § 3.317 are considered. For the foregoing reasons, the Board finds that the claim of service connection for a chronic headache disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a headache disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs