Citation Nr: 1328786 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-00 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to April 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In an October 1985 rating decision, service connection was denied for a gastrointestinal bleed. The Veteran submitted a timely notice of disagreement (NOD), and following a November 1985 statement of the case (SOC), the Veteran's representative submitted a statement which served as a substantive appeal for that issue. In a January 2008 rating decision, the RO denied service connection for migraine headaches. A video-conference hearing was held in November 2011 with the Veteran in Chicago, Illinois, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board then remanded the matter for further evidentiary development in April 2012 and March 2013. FINDINGS OF FACT 1. The Veteran does not have headaches that are etiologically related to service. 2. The Veteran does not have a gastrointestinal disorder that is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a gastrointestinal disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Subsequent to the initial adjudication of the Veteran's claims, a letter dated in April 2012 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claims by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the April 2012 letter that addressed all notice elements. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond, but the claims were then readjudicated by way of an SSOC in November 2012, after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). B. Duty to Assist The Veteran's service treatment records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran was also afforded VA examinations, and VA obtained additional medical opinions. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations and opinions obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the nature and etiology of the Veteran's claimed disabilities. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Notably, the matter was previously remanded to obtain adequate VA examinations and opinions, and therefore the prior remand directives have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders) The Veteran also testified at a Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must 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 VLJ elicited testimony to support the Veteran's contentions, and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge 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). In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that 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"). B. Headaches The Veteran underwent an enlistment examination in October 1981. No relevant abnormalities were noted. However, in December 1983, the Veteran mentioned that he had suffered a head injury. In January 1984, he related that he had a headache which had lasted four days. The diagnosis was posttraumatic headache. In June 1984, the Veteran was in a car accident, and it was noted that his head had hit the steering wheel and he lost consciousness. A brain scan showed normal findings. On numerous occasions in September 1984, the Veteran stated that he had experienced a continuous headache since June 1984. In December 1984, he again complained of severe headaches. The Veteran later underwent a physical evaluation board proceeding and was separated from service in April 1985 due to conversion disorder. The Veteran underwent a general VA examination in June 1985. He did not report any complaints associated with headaches, and the examiner did not note any findings related to headaches. In a July 2007 statement, the Veteran stated that his headaches first appeared during service. A VA examination was conducted in November 2009. The Veteran related that he had headaches for about 5 years, which had increased in severity during the past 2 years. The examiner felt that the Veteran had muscle contraction headaches due to recent onset and not related to posttraumatic injuries in service. This was based on the fact that the time lapse was so long. A Board hearing was conducted in November 2011. The Veteran testified that his headaches started after the accident he had in service. He stated that he had experienced headaches since that time. Another VA examination was conducted in June 2012 for traumatic brain injury. The examiner acknowledged a 1983 traumatic brain injury. He noted that the Veteran did not have any residuals, including headaches, resulting from this injury. However, in the remarks section of the examination report, the examiner discusses the Veteran's service-connected conversion disorder. It is not clear from the examination report whether the examiner found that the Veteran did not have headaches generally, or whether he had headaches that were unrelated to service. A supplemental VA opinion was obtained in June 2013. The examiner stated that, to a reasonable degree of medical certainty, the claimed headaches are not related to the Veteran's reported claim of a brain injury in service. This was based on the examination in 2012 in which the Veteran did not have any headache complaints. His service records indicated he had a conversion reaction which was confirmed in his examination. All noted indications were that he did have, a four day headache in December 1983 and a car accident in June 1984. The examiner stated that a conversion reaction does not have a physical cause and that the Veteran had nothing relevant to his claim of headaches now. Service connection for headaches is not warranted in this case. Although the Veteran had documented headaches in service, the overall weight of the evidence is against a finding that he has a current headache disorder etiologically related to service. The Veteran's own statements have been considered, and he is competent to report headaches. Moreover, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, as to the specific issue in this case, the etiology of the Veteran's headaches falls outside the realm of common knowledge of a lay person such as the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). He has not demonstrated the necessary knowledge or expertise to render a competent medical opinion regarding etiology. To the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. The Veteran is competent to provide evidence of his own headaches. However, he filed several claims shortly after his discharge from service, and service connection for a headaches was not among them. He did not report headaches or related symptoms during his June 1985 VA examination. During his November 2009 examination, he reported a history of headaches dating back only 5 years, or approximately 2004. He did not report having headaches during the June 2012 examination. These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Board is not holding that corroboration is required. Rather, the Board finds his current assertions regarding continuity to be less credible than the contemporaneous records. While symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the lack of evidence of any treatment may also bear on the credibility of the evidence of continuity. As such, the probative evidence is against the claim based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor, but not the sole factor, in resolving a claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In contrast, the VA examiners in this case concluded that the Veteran did not have headaches related to service. The November 2009 examiner diagnosed muscle contraction headaches unrelated to posttraumatic injuries in service. This was based on the recent onset reported by the Veteran, and the lengthy time lapse between service and that onset period. The June 2012 examiner, as stated in the June 2013 opinion, concluded that the Veteran did not have headaches resulting from a traumatic brain injury incurred in service. Rather, his examination findings related only to his conversion disorder, which has no physical cause. There were no other findings relevant to his claim for headaches. These opinions are based on a review of the claims file, a history provided by the Veteran, and physical examinations. There is no competent medical opinion which refutes these conclusions or otherwise suggests that the Veteran has headaches related to service. For these reasons, service connection for headaches is denied. C. Gastrointestinal Disorder The Veteran underwent an enlistment examination in October 1981. No relevant abnormalities were noted. In March 1984, he was treated for a stomach flu. In November 1984, he complained of vomiting, diarrhea, and tarry stool. He was diagnosed with a major gastrointestinal bleed and treated. The Veteran later underwent a physical evaluation board proceeding and was separated from service in April 1985 due to conversion disorder. A general VA examination was conducted in June 1985. The examiner noted the history of a prior gastrointestinal bleed of unknown etiology. However, at the time of the examination, the Veteran did not report complaints related to a gastrointestinal condition, and no related findings were recorded. The Veteran testified at a Board hearing in November 2011. He stated that he experienced a gastrointestinal bleed during service. He now wore a brace for a protruding belly, which also caused an increase in gas and constipation. A May 2012 VA gastrointestinal examination diagnosed the Veteran with irritable bowel syndrome, and the examiner noted the Veteran's history of gastrointestinal bleeding in service. He concluded that there was no relationship between current irritable bowel syndrome and an isolated gastrointestinal bleed in service. No further explanation was given to support this conclusion. However, in a June 2013 opinion, the examiner explained that the current irritable bowel syndrome is a functional disorder that had to do with the motility (or movement) of the fecal contents through the digestive system. The gastrointestinal bleed in service was an identifiable event in service in which a blood vessel was oozing blood into the gastrointestinal tract. Irritable bowel syndrome was not known to cause bleeding, and the two conditions were clinically unrelated. Service connection for a gastrointestinal disorder is not warranted. Although the Veteran had a gastrointestinal bleed in service, and is currently diagnosed with irritable bowel syndrome, the overall weight of the evidence is against a finding that there is an etiological relationship between the two conditions. The VA examiner in this case concluded that these conditions were clinically unrelated. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. There is no competent medical opinion to refute this conclusion or to otherwise suggest that the Veteran's current gastrointestinal disorder is related to service. The Veteran's own statements have been considered, and he is competent to report gastrointestinal symptoms. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issue in this case, the nature and etiology of a gastrointestinal condition falls outside the realm of common knowledge of a lay person. See Jandreau. The Veteran has not demonstrated the necessary knowledge or expertise to render a competent medical opinion regarding his condition. To the extent that he has experienced continuous symptoms since service, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A gastrointestinal disorder such as irritable bowel syndrome is not among the listed disabilities. Therefore, service connection for a gastrointestinal disorder is denied. ORDER Service connection for headaches is denied. Service connection for a gastrointestinal disorder is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs