Citation Nr: 1324400 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-27 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic headaches, to include as secondary to nasal septum deviation. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1960 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the above issue. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2011, as well as at a Decision Review Officer (DRO) hearing in June 2009; transcripts of those hearings are associated with the claims file. This case was last before the Board in April 2013, when the Board decided all of the other issues before it at that time. The Board remanded this sole headache issue at that time for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. FINDING OF FACT Chronic headaches were noted on the Veteran's enlistment examination and did not have their clinical onset in service, did not increase in severity in service, and are not otherwise related to active duty or a service-connected disability. CONCLUSION OF LAW The criteria establishing service connection for chronic headaches have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the 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, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty or service-connected disability would be helpful in establishing the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a November 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. Finally, this claim was remanded in the April 2013 decision, at which time the Board asked for an addendum opinion to be provided by the December 2012 VA examiner which clarified the opinion provided at that time with regards to the aggravation component of that opinion. The December 2012 examiner provided an addendum in May 2013; the Board finds this addendum to be adequate, as will be discussed below. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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, 1316 (Fed. Cir. 2009). "[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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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")). For the showing of 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be granted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). Turning to the evidence of record, the Veteran's service treatment records document that on his enlistment examination in November 1960, the Veteran reported that he had or had had frequent or severe headaches. The physician's summary includes an assessment of headaches. In July 1961, the Veteran reported that he had daily headaches behind his eyes for the past two years. He was diagnosed with tension headaches at that time. In October 1961, the Veteran was noted as complaining for several years of headaches and that he "gets mad and wants to hit the wall. Then develops [a] headache." He was prescribed medication to use as necessary at that time. In March 1962, it was noted that the Veteran had a chronic nasal obstruction and a septal deviation. In April 1962, it was again noted that he had a right nasal obstruction and was scheduled for a septectomy. It was noted that the Veteran's nasal deviation stemmed from a 1961 injury. In September 1962 a septectomy was performed. He was placed on quarters status for 3 days following the procedure. The service treatment records reflect that the Veteran was in a car accident in October 1962. He was noted as having aching muscles, but no mention of headaches. In August 1963, he was in another car accident at which time he had abrasions and contusions, but again no headaches were noted at that time. On the October 1963 separation examination, there were no complaints or findings of headaches. The Veteran denied having or having had frequent or severe headaches on his report of medical history. In a May 1964 VA examination, the Veteran reported having frequent severe headaches, which manifested as a "constant dull ache in back of [his] head." No diagnosis was made at that time. In an August 1964 Board hearing regarding his nasal septal deviation, the Veteran reported a basic training injury involving a grenade explosion which caused his helmet to fracture his nose, the source of his nasal septal deviation. He stated, "Of course it really didn't affect me much. A few weeks later I started getting headaches and trouble with breathing so I went on sick call." He reported eventually being operated on to repair the nasal fracture in service. In a July 1978 statement, the Veteran's father indicated that the Veteran sustained an injury to his nose in February 1961 while in basic training. The Veteran's father stated that "[d]ue to this [injury, the Veteran] would constantly complain of headaches." His father additionally linked the Veteran's migraine headaches to a gastrointestinal disability, including heartburn. During a December 2003 ear nose and throat VA examination, the Veteran reported that he had developed frontal headaches over the maxillary, ethmoid, and frontal sinuses with painful eyes and discharge from his nose in service following his nasal fracture. He attempted to have it corrected in service in 1962 and again in 1982, after discharge from service. The Veteran reported having continued problems, particularly with headaches at least once a week that last for 30 minutes to an hour; the headaches were severe in nature but not prostrating. No diagnosis of headaches was made at that time. In a December 2004 hearing before a DRO with regards to his nasal septal deviation claim, the Veteran stated that "throughout [his] service [he] was continually getting headaches, since problems and eventually 1962 surgery." In a May 2006 ear nose and throat VA examination, the Veteran reported that before his 1962 surgery, he had headaches over the frontal and maxillary areas with pain around the eyes with nasal discharge. He further stated that at that time he continued to have nasal congestion and headaches at least once or twice a week, lasting 30 minutes to an hour but sometimes longer; they were usually annoying headaches though sometimes they were severe in nature. His headaches were not prostrating and did not require hospitalization or bedrest. No diagnosis of headaches was made at that time. In December 2012, the Veteran underwent a VA neurologic examination of his headaches. At that time he was diagnosed with tension headaches; the date of diagnosis was the date of his VA examination. During that examination, the examiner noted that the Veteran's active service was from November 1960 to November 1963, and that his headaches started two years prior to service. He used aspirin to control his headaches. The examiner additionally noted that in February 1961, during basic training on the grenade range, the Veteran took cover and his helmet hit his nose, ultimately culminating in a septectomy in 1962 for a deviated nasal septum. He additionally noted the 1963 motor vehicle accident. The Veteran reported that he had daily headaches that last half an hour, and which start in his left occipital region and radiate to the left side and left forehead. The examiner noted that the Veteran's headaches were "short-lived" and that after reviewing his VA treatment records, there was no present diagnosis of headache found, nor was any medication prescribed for that condition. The examiner noted that the Veteran's cervical spine disability could be a reason for his headache pain. The examiner further concluded that the Veteran's headache disability was less likely than not incurred in or caused by his military service. The examiner noted that the Veteran had headaches prior to service and that there was no increase of headaches during service. Moreover, he noted that the Veteran had tensional headaches mostly not related to the nasal septum deviation. The examiner cited several literary sources with respect to tension headaches. He continued that the Veteran had headaches at least two years before service and that his complaints of headaches during service were minimal and there was no aggravation of the disease far and beyond its natural progression. There was also no increased frequency of headaches after his nose trauma. The examiner concluded that after reviewing the claims file, the headache disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Furthermore, the examiner clarified that the Veteran's headache disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its normal progression by an in-service injury, event or illness. He stated that the Veteran's headache existed about two years prior to service and that the frequency and intensity of his headaches did not increase with service as seen by his clinic visits. The examiner concluded that the headache disability clearly and unmistakably both existed prior to service and was not aggravated beyond its normal progression by an in-service injury, event, or illness. At the Board's request, the VA examiner clarified his opinion in a May 2013 addendum. He stated that the Veteran had headaches prior to service, however during and after service, his headaches did not increase even after the trauma that the Veteran had to his nose and deviated septum. This showed that the Veteran's headaches were not aggravated by the nasal septum deviation. "After reviewing the treatment records from 2009 till present, there was found no visit for the treatment of headaches [with VA]. In addition, the review of the [private treatment records] does not mention a diagnosis for headache." He noted that the Veteran's December 2012 VA examination was diagnosed with tensional headaches, which were not related at all to the nasal septum deviation and which was a new diagnosis. He concluded that "[a]fter reviewing the [claims] file [and various medical records, as well as his prior examination report, the examiner opined] that the Veteran's claimed headache disability, which clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness." The Veteran filed his claim for chronic headaches in June 2008. In his hearing before a DRO in June 2009, the Veteran stated that his headaches were related to his sinus problems, particularly noting that he treated his headache disability with medication for other conditions and particularly for his sinus disability. In his July 2009 substantive appeal, VA Form 9, the Veteran indicated that he believed that his two motor vehicle accidents in 1962 and 1963 caused his headache disability. Finally, in the Veteran's hearing before the undersigned in November 2011, the Veteran claims that his headaches are the result of his nasal deviation injury in service, noting that his headaches date back to the nose injury in 1961. The Veteran has advanced on appeal arguments that his chronic headaches should be service connected on a direct basis due to his either his nasal deviation injury in service or his two car accidents, or that alternatively, on a secondary basis as caused by either his sinus disability or his nasal septal deviation disability. The Board finds that service connection for chronic headaches is not warranted on the evidence of record in this case. The Veteran is not service connected for a sinus disability. Therefore, service connection cannot be awarded on a secondary basis on the theory that headaches were caused or aggravated by a sinus disability. See 38 C.F.R. § 3.310. Additionally, the Veteran's headaches were present (as noted on his November 1960 enlistment examination) prior to service and the presumption of soundness is not applicable. See 38 U.S.C.A. § 1111. In light of this finding, the argument that the inservice motor vehicle accidents and/or the 1961 injury which caused his nasal fracture and deviated nasal septum was the cause of the Veteran's headache disability in service is inherently implausible. Instead, the Board turns to the relevant question in this case: was the Veteran's headache disability aggravated during his military service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §3.306 (2012). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board finds that the evidence of record demonstrates headache disability was not aggravated by service. As noted by the December 2012 VA examiner, the Veteran's frequency and severity of his headaches did not increase during military service, following the nasal fracture or the two car accidents. The Board specifically notes that the Veteran indicated that he had daily headaches for two years in July 1961, which places the daily headaches as existing prior to service. Following military service, in May 1964, the Veteran continued to report "frequent" severe headaches of a similar pathology as those described during service. The examiner reviewed the Veteran's service treatment records and determined that the frequency and severity of the Veteran's headache pathology did not increase during military service. He further found that there was no evidence that the Veteran's headache disability progressed "far and beyond" the normal progression of that condition during service. There is no other competent evidence of record, including any lay statements from the Veteran or otherwise, which refute this conclusion. Accordingly, the Board finds that the Veteran's pre-existing headache disability was not aggravated by his military service, to include a 1961 nasal fracture or two motor vehicle accidents therein. See 38 C.F.R. § 3.306. To the extent the Veteran's lay statements can be construed as competent evidence that the Veteran's headache disability increased during military service, the Board finds that such evidence is not credible in this case. The Veteran has claimed that headaches had their onset in service and this is contradicted by findings and his own admission on service entry that headaches existed prior to service. Any claim that they increased in service is inconsistent with his claim of service onset. Statements by his father are not incredible, but merely support a finding that the Veteran complained of headaches following inservice trauma, a fact that the Board does not dispute. The lay statements do not convincingly show that headache pathology increased in severity in service. To the extent the Veteran or other lay personnel attribute an increase in headache pathology to service or service-connected disability, they are not competent to do so. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Veteran is service connected for his nasal septum deviation and has averred that such either caused or aggravated his headache disability, implicating a secondary service connection claim. With regards to any causal connection, the Board notes that the Veteran's headache disability existed prior to this nasal fracture which caused the deviated nasal septum. Therefore, the Board cannot find causation in this case. Moreover, the Board finds that the Veteran's nasal septal deviation does not aggravate his headache disability. The Board again relies on the December 2012 VA examiner's opinion, particularly from his May 2013 addendum, which indicate that that there was no increase in his headache disability occurred either during military service, nor during the relevant appeal period from 2009 through the present. He specifically noted that the Veteran's current diagnosis was tension headaches which were not caused or related to the nasal septal deviation and that the Veteran has received no treatment for his headache disability throughout the relevant appeal period. The objective evidence does not reflect that the frequency and severity of the Veteran's headaches has been constant since November 1960 when he was enlisted into service. If anything, the frequency of the Veteran's headaches has decreased from daily on entrance into service, to "frequent" in May 1964, to "once or twice a week" during the appeal period from 2009 through the present. Furthermore, there is no corresponding increase in severity-the Veteran's headaches are consistently described as "severe" but not prostrating since enlistment in November 1960. The Board notes that the December 2012 examiner specifically reviewed this evidence and concluded that the Veteran's headache disability was not aggravated by any in-service injury, event or illness. In light of the above, the Board finds that the evidence of record does not compel a finding that the Veteran's service-connected nasal septal deviation aggravates his headache disability. Instead, the Board notes that there was no evidence of increase in symptomatology either during service or during the appeal period. See 38 C.F.R. § 3.310. Accordingly, the Board finds that service connection for chronic headaches must be denied on the evidence of record at this time. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for chronic headaches is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs