Citation Nr: 1329318 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-07 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a stomach disability, to include as secondary to medications for a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision rendered by the Columbia, South Carolina Regional Office (RO) for the Montgomery, Alabama RO of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing in November 2008. A transcript is of record. The Board remanded the claims on appeal in February 2009. In August 2010, the Board denied the service connection claim for headaches and remanded the service connection claim for a stomach disorder. Pursuant to a May 2011 Joint Motion for Remand, however, the United States Court of Appeals for Veterans Claims vacated the Board's August 2010 decision denying service connection for headaches, and remanded the claim for additional development. With respect to the service connection claim for a stomach disorder, the Court did not have jurisdiction over this matter because it was the subject of the Board's remand. This claim was again before the Board in December 2011, at which time the Board remanded it for additional development. In the interim, the VLJ who conducted the November 2008 Board hearing left the Board. In a July 2011 letter, the Veteran was provided with the opportunity to testify before another VLJ at a Board hearing pursuant to 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. The Veteran declined in July 2011 and requested that his case be considered on the evidence of record. In September 2012, the Veteran indicated that he wished to appear at a hearing before a VLJ in Washington, DC, which was held before the undersigned in January 2013. A transcript is of record. This claim was before the Board in March 2013, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. There is no probative evidence that the Veteran's headaches are causally or etiologically related to service. 2. The record does not reflect a current stomach disability, to include as secondary to medications for a service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for a stomach disability, to include as secondary to medications for a service-connected right knee disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise 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. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Letters dated in June 2004, August 2004, and March 2009 addressed the notice requirements, and the matters were re- adjudicated in subsequent supplemental statements of the case. The Veteran has not argued he has been prejudiced by inadequate notice. With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records, private treatment records, and Social Security records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. Additional VA medical opinions were obtained in April 2012 and May 2013, which provide well-reasoned rationales. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. 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) (2010) requires that the VLJ 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 VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, such as additional medical records. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing 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. 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. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A. Headaches The Veteran contends that he has a current headache disorder related to service, including getting hit in the head while playing football. The service treatment records (STRs) show that in September 1985 the Veteran complained of coughing, vomiting, and a headache. The assessment was viral infection. Service treatment notes dated in February 1986, September 1986, and January 1987 included complaints of body aches, productive cough, and headaches for three to seven days. In each instance, the assessment was upper respiratory infection, and treatment included aspirin (Ecotrin) or Tylenol. The STRs further show that in April 1986 the Veteran complained of headaches localized to the occipital region without radiation for four days following a motor vehicle accident. On examination there was no sinus tenderness, hematoma, skull tenderness, or facial abrasions. The assessment was status post motor vehicle accident and minor contusion to all extremities. Approximately one week later, the Veteran complained of continued non-radiating headaches located in the occipital region. The assessment was headaches of unknown etiology. In a January 1987 medical history report, the Veteran denied frequent or severe headaches, but he reported frequent or severe headaches in an August 1988 medical history report. A physician's summary noted that the Veteran had occasional sinus headaches. An August 1988 medical examination report listed normal findings on clinical evaluation of the head, face, neck and scalp and neurologic system. In a March 1992 report of medical history prepared in connection with his service separation, the Veteran reported frequent or severe headaches; he denied any head injury. A physician's summary noted that the Veteran complained of recurrent sinusitis, never evaluated, and that he treated himself with over the counter medications. The Veteran attributed the headaches to upper respiratory infection. A March 1992 separation medical examination report listed normal findings on clinical evaluation of the head, face, neck and scalp and neurologic system. Post-service VA treatment records dated from June 1992 contain no reference to headaches until August 1998, when the Veteran complained of occasional sharp pain behind his head and indicated that he smoked one pack of cigarettes per day. The assessment was possible tobacco - headache. Private treatment records dated from September 1995 from several treatment providers contained no reference to headaches until 2003. At February 2003 private treatment with Scott Markle, M.D. the Veteran complained of pain in the back of the head and facial pain. A brain magnetic resonance imaging (MRI) report in March 2003 identified no definite pathology. He complained of headaches regularly beginning in April 2003, was treated with medication, and was told to stop smoking. At private treatment with Mobile Family Physicians in April 2004, the Veteran complained of headaches and right-sided facial pain. The impression included chronic headache and herpes zoster [shingles] on the right face. At July 2004 treatment with Mobile Family Physicians the Veteran reported that he still had occasional headaches. A Mobile Family Physicians practitioner wrote in a May 2005 statement that the Veteran reported that he injured his head in a motor vehicle accident in 1986, "had another episode where he fell and had a head injury," and had been having headaches more or less constantly since the time of his injuries. The Veteran wrote on a May 2005 disability retirement form that he had migraines. In July 2005, the Veteran was admitted to the Mobile Infirmary Medical Center for recurrent deep vein thrombosis. The impression included history of migraine headaches with facial pain. A March 2006 CT scan of the head and brain from private treatment was negative. The Veteran testified at the November 2008 Board hearing that he had had headaches on a daily basis since service. He further testified that he believed that he began having headaches from being hit in the head playing football in service. At a February 2010 VA examination, the Veteran stated that he has had daily bifrontal headaches since a 1986 motor vehicle accident and self-medicated with Tylenol until he saw Dr. Markle in 2000. The examiner diagnosed the Veteran with cephalgia and opined that it was less likely than not that it was related to the headaches from the 1986 motor vehicle accident or the upper respiratory headaches from service. The rationale was a lack of chronicity and continuity of care. The examiner also opined that cephalgia was not related to medications taken for the Veteran's service-connected right knee disability because a review of the medical literature revealed that none of the medications he used for his knee cause cephalgia. An April 2012 opinion from the VA examiner states that it is less likely than not that the Veteran's headaches were related to service or aggravated by military service. It was noted that the Veteran's headaches after the April 1986 motor vehicle accident were located in the occipital region and that six days later they were still located there. The examiner noted that the claims file showed a lack of chronicity and continuity of care. A review of the STRs did not support a chronic or ongoing disability prior to discharge. The Veteran testified at the January 2013 hearing that during service he played football on a weekly basis for three months of the year. He indicated that he had had headaches on a daily basis since the 1986 accident. The Veteran testified that he did not seek treatment for headaches more often during service because he did not want to be labeled a malingerer and that he treated himself with over the counter medications. In a May 2013 opinion, a VA physician wrote that there was no evidence of a football injury in the medical record or continuance of care. Current medical literature establishes that collective trauma due to boxing and/or football will cause changes in a CT scan, and a 2010 CT scan was normal. The Veteran is competent to report that he has had headaches on a daily basis since the 1986 accident. However, the Board does not find this to be credible. While it is plausible that the Veteran may have not reported headaches more often during service because he did not want to be called a malingerer, this does not account for the silence in the records of treatment post service when this incentive to avoid the label had passed. In addition, the record establishes the Veteran would seek out medical care for his medical complaints, such that it would be reasonable to conclude that where the records do not show headache complaints, the Veteran had none. Also tending to support the conclusion the Veteran did not have ongoing headache complaints since service, is the absence of any mention of this on his applications for VA benefits in the 1990's. It would seem reasonable that the Veteran would file for benefits for all his ongoing medical problems, rather than omit one until many years had passed. Thus, the Board does not accord any probative value to the Veteran's contentions of ongoing headaches since service. The Veteran also has made statements to the effect that his headaches are related to service, including the 1986 motor vehicle accident and playing football. He is not shown, however, to have any medical expertise and the processes by which one experiences internal head pain are clearly beyond a layman's abilities. Therefore, his statements on etiology are not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). The May 2005 physician statement cannot be given probative value as a medical opinion regarding the Veteran's headaches because it merely transcribes what the Veteran reported. On the other hand, the adverse VA examiner's opinions explain that the Veteran's current disability is not likely related to service, because it would have required continuing medical care since service, the in-service occipital headaches are located in a different area of the Veteran's cranium than his current headaches, and were headaches associated with trauma, there would be changes on CT scan. These scans were normal. It was also explained that the medications for the Veteran's knee are not known to be causes for headaches. Since these opinions are based on an accurate understanding of the Veteran's history, and are adequately articulated and explained, they are the most probative evidence on the question at issue. Because this evidence preponderates against the claim of service connection for headaches, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. B. Stomach Disability The Veteran contends that he has a stomach disability that is due to medication he has taken for his service-connected knee disability. The STRs show that on a March 1992 medical history report the Veteran indicated having had burning epigastric pain that he treated with Pepto-Bismol. He had never been seen by a doctor for it. The Veteran also indicated having never had stomach, liver or intestinal trouble. The STRs do not show other complaints, treatment or diagnoses related to the stomach. At November 2000 private treatment the Veteran complained of a two week history of worsening epigastric pain that came in waves. He was diagnosed with gastritis and constipation, and no opinion was provided regarding etiology. In March 2001 the Veteran was diagnosed with acute gastritis. Additional private treatment records from later in March 2001 indicate that Medrol helped the Veteran's knees and shoulders but caused severe stomach cramps and pain. The Veteran had finished the medicine and his stomach was better. Private primary care treatment records from August 2001 state that the Veteran was very sensitive to most medicines. At June 2003 treatment with Dr. Markle the Veteran complained of stomach pain. Dr. Markle felt that Naprosyn may be giving the Veteran peptic ulcer disease. At July 2003 private treatment the Veteran was prescribed Aciphex for gastroesophageal reflux disease (GERD). Robert L. Kominek, M.D., a private family physician, reviewed the Veteran's recent treatment records in October 2004 and wrote that it appears that the Veteran had not been able to tolerate steroids for increased knee pain on the one occasion when they were prescribed because of gastrointestinal symptoms. The Veteran was able to tolerate non-steroidal medications, which afforded some degree of relief. The Veteran wrote on a May 2005 disability retirement form that he had irritable bowel syndrome. May 2005 and June 2005 private treatment records indicate that the Veteran had gastroenteritis. At October 2005 VA treatment it was recommended that the Veteran stop taking Naprosyn because of the fear that it was hurting his stomach in conjunction with Coumadin. The Veteran testified at the November 2008 hearing that he had gastritis. He had had to switch to "lighter" pain medication because of his stomach. He said that he started having trouble with his stomach and having anal bleeding while he was in the Marines, and a doctor had drawn a correlation between the anti-inflammatories and pain medication. In March 2012 a VA physician reviewed the claims file and diagnosed the Veteran with dyspepsia, (an impairment of the power or function of digestion usually applied to epigastric distress following meals. See Dorland's Illustrated Medical Dictionary, 31st Edition, p. 586). It was noted that the STRs did not support a chronic or ongoing gastrointestinal disability prior to discharge from service. The examiner felt it was less likely than not that the Veteran's dyspepsia was related to military service or was aggravated by military service. The Veteran testified at the January 2013 hearing that he has acid reflux and gastritis and that his stomach condition was caused by the medication that he takes for his knee. A VA physician reviewed the record in May 2013 and opined that there was no evidence of a medical disability related to the Veteran's gastrointestinal system. It was noted that an upper gastrointestinal study from 2010 was normal without evidence of GERD or peptic ulceration secondary to medication usage and that symptoms of dyspepsia can be caused by dietary indiscretions or increased alcohol consumption and do not represent a medical condition or incapacitation. The Veteran is competent to report symptoms such as epigastric distress, but as it is an internal process, he is not competent to state whether it represents a formal chronic disability, or an acute, self limited event, or what has caused it. Therefore, any of his assertions regarding those questions are not probative. This record shows the Veteran had some epigastric discomfort in service, but many years passed before any subsequent complaint is documented. As indicated in the discussion pertaining to the Veteran's headaches, his history reflects an individual who seeks medical care for medical complaints, and therefore, the absence of any documented epigastric discomfort suggests an absence of it. Likewise, not making a claim for VA benefits based on it, in the context of someone pursuing VA disability benefits for other problems over the years, suggests that stomach discomfort was not an ongoing problem. There was a period, however, where medication for the Veteran's knees was evidently producing stomach complaints, but when the Veteran's complaints were formally investigated in an examination conducted in connection with his claim, it was the conclusion of the examiner that the Veteran did not have any disability related to the gastrointestinal system. It was observed that diagnostic studies found no evidence of GERD or peptic ulceration and that the Veteran's complaints could be accounted for by dietary indiscretions or increased alcohol consumption. Since this is consistent with, and accounts for, the Veteran's history, the Board considers it to be highly probative. As it does not link any current gastrointestinal disability with service, or indeed establish the presence of a chronic gastrointestinal disability that could be related to service, or service connected disability and no competent medical opinion states otherwise a basis upon which to establish service connection has not been presented. ORDER Service connection for headaches is denied. Service connection for a stomach disability, to include as secondary to medications for a service-connected right knee disability, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs