Citation Nr: 1323442 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-04 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1957 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was remanded in August 2012 for evidentiary development. All actions required by the remand have been accomplished. The Veteran appeared at a Travel Board hearing in August 2011. A transcript is of record. The Veteran's physical claims file, to include the portion contained in the electronic Virtual VA system, has been reviewed. FINDING OF FACT The Veteran's headaches manifested after active service, and there is no competent evidence of a linkage between a current headache disability and service, to include a lighting strike. CONCLUSION OF LAW The criteria for service connection for a headache disability have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as various "other organic diseases" of the nervous system, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran in this case was struck by lightning while working as an Army communications specialist in 1959. At the time of the incident, the Veteran was taken to a service department hospital for an overnight evaluation, and an acute anxiety reaction was assessed. The Veteran was then released and was determined to be fit for duty. Essentially, it is asserted that a current headache disability had causal origins with the lightning strike in 1959. The Veteran's service treatment records do not contain any diagnosis, complaint, or treatment for a headache disorder. At his service separation examination, the Veteran specifically denied having headaches by checking "no" to a question as to if he had ever suffered from them. During the same separation examination report, the neurological findings were within normal limits. The Veteran states that he began to see a private physician at some time in approximately 1961 with headache complaints. He provided this testimony at his Travel Board hearing, and noted that this physician has since died and that records from that practitioner were unavailable. It is noted that the Veteran has been diagnosed with a nonservice-connected mental health disorder, and that such a condition has made him unemployable and has entitled him to disability payments from the Social Security Administration (SSA). The available records from that agency do not show that the Veteran experienced a headache disability. The Veteran was afforded a VA examination in July 2008, and in the associated report, was diagnosed with headaches. The examiner noted, based on his interview with the Veteran, that the history seemed to indicate an onset for headaches occurring after service. Regarding the lightning strike, and while the acute psychiatric episode was noted (anxiety reaction), the examiner stated that the results of physical examination following the lightning strike were negative for any abnormalities. It was his professional medical opinion that "there would be nothing from the lightning strike that would have resulted in the late-onset of headaches several years later." The Veteran has stated that he did not experience headaches until after his discharge from service, with complaints first manifesting in 1961 (he separated from service in 1960). The evidence shows that the Veteran is diagnosed with headaches, and he has never been assessed as having an organic neurological disorder for which these headaches might be a symptom. Headaches which are not part and parcel of "other organic diseases of the nervous system" are not "chronic" diseases within regulatory definition, and must manifest in service (or, alternatively, be etiologically related to service) in order for service connection to be granted (i.e., a manifestation to a compensable degree within the first post-service year, or evidence of continuity of symptomatology, is not sufficient). See 38 C.F.R §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). That is to say, that while the Veteran asserts first having "problems" with headaches in 1961, as this is after service separation, such a finding weighs against the claim for service connection. Regarding a potential nexus between the documented in-service lightning strike and a current headache disability, the Board must conclude that there is no competent evidence of record supporting such an allegation. Indeed, the United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board also recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can support a grant of service connection if there is a relationship to service, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as in this case, there is no evidence of a headache disability during the claim period, that holding is inapplicable. Simply put, in the current case, the only evidence supportive of the Veteran's claim consists of the statements of the Veteran himself. The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). 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). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the current case, as stated above, the evidence of record simply does not support a finding that there is a linkage between a 1959 lightning strike and a current headache disorder. Indeed, the only thing which is supportive of such a link is the Veteran's own unsubstantiated assertion. The relationship between a distant lighting strike and the eventual onset of headaches is something that is complex in nature and is not readily observable, and accordingly, the Veteran has not been shown to posses the required medical credentials necessary to opine on such a complicated medical question. Indeed, the Veteran has not submitted anything, other than his own lay assertions, which even remotely suggests medical support for his assertions (e.g. medical journals, supporting letters from caregivers, etc.), and even though he has stated that he visited a healthcare provider in the years proximate to service discharge, he has admitted that the headaches began after service and has not stated that his private physicians linked any present headache disability to a lightning strike in 1959. Given these findings, the Board must conclude that any currently present headache disorder began after service separation, and there is no competent evidence of a link between current headaches and service. Further, the Veteran has not provided anything which, upon further development, would even potentially suggest a causal linkage between the confirmed lightning strike and his headache disability. Quite the contrary, he has only submitted his own lay opinion regarding a nexus, has stated that his headaches began after discharge, and has not indicated that there is outstanding evidence which would support his claim. As such, any remand for additional development would be futile and would only result in unnecessary delay in the adjudication of the claim. Accordingly, based on the lack of probative evidence supporting the claim, the Board concludes that the requirements for service connection are not met, and the claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for service connection. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (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. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Texas Veterans Commission (TVC), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded a comprehensive June 2008 VA examination which addressed his claimed condition. There is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or offer an additional medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). Finally, the Veteran was afforded a personal hearing before an Acting Veterans Law Judge in August 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with this 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. Here, although the presiding Veterans Law Judge during the hearing did not explicitly note the basis of the prior determinations or note the elements that were lacking to substantiate the claim on appeal, the Veteran demonstrated actual knowledge of this information. The Veteran specifically addressed evidence in support of his claim, indicating an understanding of requirements to establish the benefit sought on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issue on appeal and provided a basic explanation of it. Accordingly, the Veteran is not shown to be prejudiced on this basis. ORDER Entitlement to service connection for a headache disability is denied. ____________________________________________ T. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs