Citation Nr: 1329298 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 04-41 651A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for headaches, to include as secondary to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the RO. The Board remanded the issue in June 2009 and then denied the claim in a November 2011 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2012 Order, granted a July 2012 Joint Motion for Remand. The parties to the Joint Motion agreed that the June 2011 opinion from the Veterans Health Administration (VHA) was inadequate as the examiner stated that PTSD could contribute to headaches, but did not provide a rationale for his conclusion that he did not see convincing evidence that would make it more likely than less likely that the Veteran's headaches were a consequence of PTSD. Although not specifically stated, the Court's Order served to vacate the November 4, 2011 decision of the Board. In January 2013, the Board remanded the issue for further development. In January 2013, the Veteran submitted a claim to reopen the claim of service connection for hearing loss. The issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The currently demonstrated headaches are shown to have stated during to the Veteran's period of active service following his exposure to the documented explosion and other harmful noise sources during his period of active service including in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by migraine headaches is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Governing Laws and Regulations for Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013), the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, the list does not include migraine headaches as a "a chronic disease." See 38 C.F.R. § 3.309(a) . Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Secondary service connection may be established for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006, 2012). Secondary service connection may also be established for any increase in severity of the nonservice-connected disability that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b) (2012). The Board notes that in October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen v. Brown, 7 Vet. App. 439 (1995) except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis In statements and testimony, the Veteran asserts that his current headaches are related to an event during service when an ammunition dump blew up as well as due to his routine exposure to elevated noise levels caused by aircraft, explosions and artillery fire. Although there is no documentation of treatment for headaches in service, he does report having had headaches since the time he served in the Republic of Vietnam. He explained that, because he was in a war zone, he did not have the luxury of going on sick call or resting while his head cleared up. The Veteran's spouse testified at the recent hear that, for many years, he did not seek medical treatment because he did not like going to doctors, but had taken Tylenol every night. The Veteran testified that he does not remember if he was asked upon discharge from service whether he had headaches, but reiterated that he certainly had headaches when he was separated from service. Significantly, the Veteran is shown to have denied having headaches at the time of his service separation examination, but he was noted to have a history of hypertension for two years. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). During the period of appeal, the VA examinations in December 2003, November 2007, October 2009 and February 2013 showed a diagnosis of migraine headaches. Thus, the Veteran clearly has a disability manifested by migraine headaches. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). He thus meets this threshold requirement for service connection. The service treatment records are negative for actual complaints or findings referable to a headaches. In January 2005, the Veteran stated that there were many attacks on his duty station in Vietnam. His personnel records show that, from January 1968 to August 1968, he served in the Republic of Vietnam. The Veteran is service connected for PTSD based on his verifiable stressor that he was near an ammunition supply depot when it blew up. (See April 2008 rating decision). With regard to a nexus under 38 C.F.R. § 3.303(a), there is probative evidence of a nexus between the Veteran's headaches and service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board has considered the Veteran's lay statements and acknowledges that as a layman he is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard the Veteran's statements that he has suffered from headaches since service in the Republic of Vietnam are found to be competent. Moreover, based on the evidence of record, the Board finds his statements to be credible and consistent with the circumstances of his service. The Board recognizes that there are unfavorable VA opinions of record; however, the opinions are of limited probative value as they are based on the absence of documented headaches during service. The Court has held that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Based on the VA examination in November 2007, the examiner commented that, although the Veteran stated that his headaches started in service following an explosion, there was no definite documentation of headaches starting in Vietnam and that it was less likely as not that the headaches were the result of the explosion in service. On VA examination in October 2009, the examiner concluded that it was less likely that the current migraine headaches were due to the in-service explosion or that the claimed headaches were due to PTSD as these occurred independently and were not associated with PTSD. In the July 2011 VHA opinion, the VA medical reviewer opined that it was "not likely (using the standard of at least as likely as not)" that the current migraine headaches were caused by a single incident of excessive noise exposure or routine exposure of elevated noise levels incident to the Veteran's duties during service. The examiner also noted that it was "not likely (using the standard of at least as likely as not)" that the current migraine headache disorder was caused or aggravated by the service-connected PTSD based on the fact that the Veteran's headaches were not clearly documented in service. The VHA medical reviewer added that PTSD could contribute to headaches, but he did not see convincing evidence that would make this more likely than less likely that the headaches were the consequence of the PTSD. On VA examination in February 2013, the VA examiner concluded that, as there were no service treatment records or post-service treatment records "available for" headaches and there was no controlled study available about PTSD causing headaches, it was less likely as not that the current migraine headaches were caused or aggravated by PTSD or related to service. While headaches were not identified in the service treatment records, this does not preclude the grant of service connection where, as here, the Veteran's reported that he had experienced headaches and this was consistent with the circumstances of his service. Under 38 U.S.C.A. § 1154(a), where a veteran is seeking service-connection for a disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record and all medical and lay evidence. To the extent that the Veteran and his wife have presented credible lay statement that are sufficient to establish that he has experienced headaches since service, the Board finds the evidence to be in relative equipoise in showing that the current headache disorder as likely as not had its clinical onset during service due to his exposure to an explosion and other hazardous noise levels during service in the Republic of Vietnam. In resolving all reasonable doubt in the Veteran's favor, service connection for headaches is warranted. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Service connection for headaches is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs