Citation Nr: 1326511 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-19 547 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a disability manifested by headaches, to include residuals of a head injury. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to June 1974. This appeal to Board of Veterans' Appeals (Board) arose from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that denied the benefit at issue. The Veteran perfected a timely appeal of that determination. The Veteran was represented by a service organization at the RO; representation was withdrawn following issuance of the supplemental statement of the case in November 2010. See 38 C.F.R. § 20.1304 (2012). The Veteran has not assigned another representative and is representing himself on appeal. In an October 2012 Board decision, the claim was reopened and remanded to the RO for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in February 2013. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, sinus headaches had their clinical onset in service. CONCLUSION OF LAW The Veteran has sinus headaches that are likely the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in November 2008, December 2008, and September 2009 from the RO to the Veteran which were issued prior to the RO decision in October 2009. Additional letters were issued in June 2010, September 2010, March 2011, and October 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination report reflects that the examiner solicited a history and complaints from the Veteran, examined the Veteran, provided diagnoses consistent with the record, and included opinions necessary to decide the issue addressed herein. Therefore, the examinations are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the duty-to-assist requirements. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from June 1968 to June 1974. The service treatment reports (STRs) reflect that the Veteran was seen in February 1974 with complaints of muscle pain for the past 72 hours with headaches, sinusitis and sore throat; he was diagnosed with cold symptoms. In March 1974, the Veteran was again seen for complaints of nausea and headaches. During his separation examination in March 1974, the Veteran reported a history of frequent and severe headaches; he reported suffering a head injury in 1971 in Vietnam when he was hit on the head with a 2 by 4 and was rendered unconscious but no residuals. A neurological evaluation was reported to be normal. In April 1974, the Veteran was seen with complaints of severe headaches with rhinitis and congestion; the assessment was chronic rhinitis with sinusitis. VA progress notes dated in April 1979 were negative for any complaints of or treatment for sinusitis or headaches. A VA examination report, dated in May 1979, reflects a diagnosis of sinusitis, alleged, suspected but not yet proven. Received in November 2008 were VA progress notes dated from October 1999 to May 2003. These records show that the Veteran received clinical attention and treatment for headaches. The Veteran was seen in an emergency room in November 2002 with complaints of headaches with dizziness for the past year; he noted that the headaches had increased in severity. The Veteran reported that the headaches were brought on by strenuous activity and nerves, and they lasted a couple of hours if he can lie down. The assessment was cephalgia; a CT scan was ordered. A week later, November 13, 2002, it was noted that the CT scan was normal, and the cephalgia improved. Received in December 2008 were VA progress notes dated from July 2004 through November 2004. These records show that the Veteran received clinical attention for sinus problems. A May 2006 VA progress note reflects an assessment of sinusitis. The records do not reflect any complaint of or treatment for headaches. Received in July 2009 were additional STRs which show that the Veteran was admitted to the emergency room of the 24th Evacuation hospital on October 24, 1971 for skull fracture and complaints of pain. It was noted that the Veteran had occipital headache; he was oriented to time and place. He remained stable. On October 29, 1971, the Veteran was readmitted with complaints of headaches; a neurological evaluation was reported as normal. An x-ray study revealed a linear non-displaced fracture midline. The impression was skull fracture-linear, cerebral concussion. Received in September 2009 were additional VA progress notes dated from December 2008 through September 2009. The records do not reflect any complaint of or treatment for headaches. Subsequently received in December 2009 were VA progress notes dated from December 2006 to November 2009. The records do not reflect any complaint of or treatment for headaches. VA progress notes dated in February 2010 were also silent with respect to any complaints of headaches. The Veteran was afforded a VA examination in February 2010. At that time, the Veteran indicated that he has had headaches since 1971; he noted that they occur once a week to none for 4 weeks. The Veteran related that the headaches occur from front to back, and they feel like a tight band around the head. The Veteran denied any vomiting and blackouts. The Veteran also reported a history of chronic sinusitis. X-ray study of the sinuses revealed mild bilateral maxillary sinusitis, slightly more pronounced on the right than the left. A CT scan of the head revealed minimal cortical atrophy with no other significant or acute abnormality. The pertinent diagnoses were tension type headaches and sinus headaches (mild bilateral maxillary sinusitis slightly more pronounced on the right than the left). Following a review of the claims file and the examination results, the VA examiner opined that the traumatic headaches that occurred in service was less likely as not (less than a 50-percent probability) caused by or a result of his head injury and post-traumatic headaches that occurred in service. The examiner explained that the service headaches were transient at the time of the injury and have no relationship to his present complaints. Received in October 2010 were VA progress notes dated from June 2010 to September 2010. These records were negative for any complaints of or treatment for headaches. Received in February 2011 were VA progress notes dated from November 1992 to May 2003. These records were negative for any complaints of or treatment for headaches. Subsequently received in March 2011 were additional VA progress notes dated from January 2011 to March 2011. These records were negative for any complaints of or treatment for headaches. In October 2012, the Veteran's claims folder was referred to a VA examiner for review and an opinion regarding whether any current headaches are related to the Veteran's head injury. It was noted that the Veteran currently suffers from persistent headaches as reported by him and confirmed by a friend and relative in 2008. The examiner noted a history of head injury with linear non-displaced midline fracture at the coronal suture. It was noted the Veteran was admitted for hospital observations twice, but they did not reveal any neurological sequelae of fracture and neurological examination was normal. The examiner also noted that the separation examination was normal. It was further noted that he was treated for sinusitis and sinus headaches during service. The current diagnoses are tension type headaches and sinus headaches. The examiner noted that a review of problem list in the VAMC revealed no mention of headaches. X-ray of the sinuses revealed evidence of sinusitis; however, CT scan of the head was negative. The examiner explained that simple linear skull fracture heals without any sequalae, except when the dural sinus is ruptured leading to extra-axial bleeding under the skull and causing pressure on the brain and can result in significant intra-cranial bleeding; this will happen immediately after injury. The examiner opined that the headaches are not related to the simple linear fracture; however, he stated that the sinus headaches are at least as likely as not related to service as the Veteran was treated during service for those headaches. III. Legal Analysis. The Veteran maintains that service connection is warranted for headaches. The Veteran asserts that he has experienced continuous headaches after his October 1971 head injury up to the present day. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. To show 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 disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Indeed, medical evidence of treatment is not needed to corroborate an assertion that the Veteran has experienced headaches since service. Rather, as this is within the realm of his five senses, he need only establish he has experienced continuous symptoms (not had continuous treatment). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court has recognized lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Court has similarly determined that a VA examination was inadequate because the examiner did not comment on a veteran's report of in-service injury and, instead, relied on the absence of evidence in the service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Certainly then, when, as here, there is documentation of an event in service and of continuous symptoms since, this adds even more credibility to the appellant's lay allegations. Ultimately, though, competent and credible medical nexus evidence is needed to associate these continuous symptoms since that injury in service with his current disorder. There is medical evidence for and against the claims on this determinative issue. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran claims that his current headaches are related to service and has been ongoing since service. For the following reasons, the Board finds the evidence is at least in equipoise and resolves doubt in the Veteran's favor. Based on the foregoing, when resolving doubt in favor of the Veteran, the Board finds that service connection for sinus headaches is warranted. As noted above, STRs show that the Veteran was evaluated for complaints of headaches and sinusitis in February 1974. He was again seen for complaints of severe headaches in April 1974; his headaches were associated with sinusitis. Clearly, the Veteran was treated for headaches associated with sinusitis in service. Moreover, he has provided competent lay testimony that he continued to experience headaches after service and continues to suffer from headaches at present. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds that the Veteran's lay statements regarding continuing symptoms are credible. Therefore, the sole question remaining for the Board to answer is whether the evidence suggests a medical link between the Veteran's current headaches and the incidents in service. In terms of post-service medical evidence contained in the claims folder, VA treatment records show that the Veteran received treatment for sinusitis. The Board observes that following a VA examination in February 2010, the VA examiner opined that the traumatic headaches that occurred in service was less likely as not (less than a 50-percent probability) caused by or a result of his head injury and post-traumatic headaches that occurred in service. The examiner explained that the service headaches were transient at the time of the injury and has not relationship to his present complaints. There is no competent evidence relating chronic headache pathology to head injury in service, including the skull fracture. However, the Board observes that the February 2010 examination also reported a diagnosis of sinus headaches. As for the question of whether the Veteran's diagnosed sinus headaches were related to active service, the Board observes that, following a more recent review of the Veteran's claims folder, in October 2012, the VA examiner opined that the sinus headaches are at least as likely as not related to service as the Veteran was treated during service for those headaches condition was related to his active service. Resolving doubt in the Veteran's favor, the Board finds that service connection for sinus headaches is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sinus headaches is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs