Citation Nr: 1331134 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-13 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a disability manifested by memory loss. ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from September 1975 to September 1979. This matter was originally on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. In April 2010, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran's migraine headache disorder is not related to his active service or to any service connected disorder. 2. The Veteran does not have a disability manifested by memory loss that is related to his active service or to any service connected disorder. CONCLUSIONS OF LAW 1. A migraine headache disorder was neither incurred in nor aggravated by active service, nor is it secondary to a service connected disorder. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A disability manifested by memory loss was neither incurred in nor aggravated by active service, nor is it secondary to a service connected disorder. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in July 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Pursuant to the Board's April 2010 Remand, the RO obtained the clinical records from Madigan Army Medical Center for 1978, scheduled the Veteran for VA mental health and neurological examinations, readjudicated the claim, and issued a Supplemental Statement of the Case. Based on the foregoing actions, there has been compliance with the Board's April 2010 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that he has migraine headaches and memory loss stemming from an in-service motor vehicle accident, that he had migraine headaches in service and has had them since, and that migraine headaches and memory loss are secondary to his service connected facial injuries. The Board has reviewed all service treatment records and all available private medical records, to include records from Southampton Memorial Hospital and the Virginia Department of Corrections. These records do not include any opinion linking a headache disorder or memory loss to the Veteran's active service, or to a service connected disorder. (The appellant is service connected for facial scars, and residuals of a fracture of the right tibia and fibula.) The service treatment records reveal that the Veteran was involved in a car accident in August 1978. On admission to a hospital he was awake and responsive. Physical examination revealed multiple deep facial lacerations and a right leg fracture. He was neurologically intact. The Veteran was noted to have never lost consciousness. No complaints of headaches were noted. While there is evidence of a motor vehicle accident during service, there is no medical evidence that shows that the Veteran suffered from headaches or memory loss during service. The service treatment records, including inpatient hospital records after the motor vehicle accident, are devoid of any complaints, findings or diagnoses of headaches and memory loss during service. Indeed, on clinical examination for separation from service in July 1979, the Veteran specifically denied ever having frequent or severe headaches, head injury, loss of memory, and periods of unconsciousness. The Veteran was afforded a VA compensation examination in October 1979. At that time no complaints, findings or diagnoses pertaining to either a headache disorder or memory loss were noted. The Veteran underwent VA examinations in March 2011. He reported that he became anxious which led to the onset of migraine headaches. He also endorsed that his greatest struggle was with his memory. At the neurology examination, the Veteran claimed that his headaches were related to a head injury sustained during the 1978 motor vehicle accident, and that he had headaches in service which had gradually worsened over the years. The Veteran also reported that he was unconscious after the accident and began having memory problems about 10 years prior. Following a physical examination the appellant was diagnosed with migraine headaches and mild memory loss. The examiner opined that it was less likely as not that the Veteran's current headache disorder and mild memory loss were related to the 1978 motor vehicle accident or active service. In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. The Veteran contends that he has had migraine headaches in service and since. In addition, the Veteran reported at the March 2011 VA examination that he had a head injury, loss of consciousness, and headaches in service. These statements, however, are not credible and are specifically contradicted by the Veteran's own denials at service separation when he denied a history of frequent or severe headaches, head injury, memory loss, and periods of unconsciousness. While the Veteran was involved in a car accident in-service the service treatment records specifically note that he never lost consciousness. Because the Veteran's statements in support of his claim are inconsistent with statements he made during service, they are found to be not credible. In addition, although lay persons are competent to provide opinions on some medical issues, the relationship of migraine headaches and memory loss to the Veteran's active duty service and to a motor vehicle accident in particular, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007)." Finally, there is absolutely no competent evidence that even remotely supports the argument that the appellant's migraine headaches and memory loss are caused by any service connected disorder, to include any facial injury. Thus, the record is absent credible evidence of in-service evidence of migraine headaches and memory loss. In addition, the competent evidence finding no nexus between service and currently diagnosed migraine headaches and memory loss outweighs the Veteran's lay statements. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. The claim is denied. ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for a disability manifested by memory loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs