Citation Nr: 1331254 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-23 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a thoracolumbar disorder. 3. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had active duty from November 2003 to November 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for migraine headaches, thoracic spine pain and cervical pain. In November 2010, the Board remanded the case with orders for additional development to include associating VA treatment records with the claims file, and new VA examinations and opinions. The issues indicated above are now again before the Board. In January 2010 the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. A review of the Virtual VA paperless claims processing system reveals that the system includes documents that relate to the immediate appeals, include an informal hearing presentation from the Veteran's representative and VA treatment records. These documents are considered to be part of the claims file, and as such have been considered as part of the present appeals. The issues of entitlement to service connection for a thoracolumbar disorder and a cervical spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AMC in Washington, DC. FINDINGS OF FACT 1. Migraine headaches began in service and have been unremitting since service. 2. The Veteran currently has migraine headaches. 3. The Veteran's migraine headaches are related to service. CONCLUSION OF LAW The criteria for service connection for headaches has been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board is granting, in full, the benefit sought on appeal and VA has no further duty to notify or assist. Service Connection for Headaches Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Headaches, to include migraine headaches and tension headaches, are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Headaches are a condition which is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the 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 Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran asserts that migraine headaches began in service, specifically during time in Iraq, and that headaches have been ongoing since onset. The Board finds that headaches began in service, have been unremitting since service. The Board also finds that the Veteran currently has diagnosed migraine headaches and the disorder is related to service. Service treatment records reveal that on post-deployment examination in September 2005, the Veteran complained of headaches. The Veteran again complained of headaches on post-deployment examination in January 2007, and on separation examination in October 2007 the Veteran complained of frequent headaches due to stress while deployed in Iraq. On VA examination in February 2008, the Veteran endorsed having been exposed to "several mortar shell explosions" during his time in Iraq. The examiner opined that the Veteran had mild-to-moderate migraine headaches, but did not offer a nexus opinion. On VA examination regarding headaches in February 2011, the Veteran gave a history of headaches beginning sometime after in-service mortar shell explosions between 2004 and 2005. The examiner diagnosed the Veteran with migraine headaches and tension headaches. The examiner noted post-service complaints of headaches and complaints of headaches on service separation examination, but stated that "there was no diagnosis of migraine headaches and no detail about the type or quality of headaches" in service. The examiner concluded that concluded that "[i]t is as less likely as not the current migraine headaches are related to the headaches [the Veteran] had in the service and in treatment records." The Veteran has endorsed that headaches onset in service and have been unremitting since onset - the Veteran is competent to testify regarding headaches to the extent that headaches can be observed by lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, insofar as the Veteran has been consistent in reports of headaches in service and following separation from service, the Board finds the Veteran's endorsements of unremitting headache symptomatology to be credible and highly probative. While the Board recognizes the opinion of the VA examiner in February 2011, the Board finds the examiner's opinion is not supported by an adequate rationale and of limited probative value when compared with the Veteran's competent, credible endorsements of in-service incurrence followed by ongoing headache symptoms. Thus, resolving doubt in the Veteran's favor service connection is established for migraine headaches and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for migraine headaches is granted. REMAND The Veteran asserts that a thoracolumbar disability and a cervical spine disability are related to service; specifically that onset is due to stress during a tour of duty in Iraq, which included carrying heavy loads as a Marine Corps infantryman and rifleman. The record shows current diagnoses of mild narrowing of the disc space in the Veteran's spine at the L5-S1 level, and mild degenerative spondylitic changes at the C7-T1 level. The Veteran's service separation examination dated in October 2007 shows complaints of chronic back pain due to boot camp. The examiner also made note of right shoulder (clavicle pain) due to carrying heavy back packs. Post-service evidence indicates that the Veteran sought treatment for the back in March 2008, within a year of separation from service. November 2008 VA treatment records show that the Veteran experienced right shoulder pain that was suggestive of cervical radiculopathy. The Veteran reported that pain began between 2003 and 2004 while in service. The Veteran was afforded several VA examinations, however none, including those conducted following the Board's November 2010 remand, have been adequate. A VA examiner in 2008 stated that because the Veteran did not complain while in service and only complained on separation from service, the claimed disabilities are not related to service. No analysis or rationale was provided for these conclusory findings, and the Veteran's contentions regarding carrying heavy packs in service causing back problems were not addressed. The Board also notes that in service the Veteran complained of right shoulder pain that was later related to the neck and cervical spine. No opinion with regard to this condition was discussed. On VA examination of the spine in December 2010 the examiner claimed to be "not able to find any documented injury or treatment related to the Veteran's claimed neck or low back condition," and therefore the examiner was "unable to provide [an] opinion without resort to mere speculation." The Veteran's endorsement of wearing a heavy pack - up to 120 pounds according to testimony at the January 2010 hearing - is evidence pertinent to the claimed in-service injury, and in offering an addendum opinion the VA examiner should specifically address this contention. If a VA examination is inadequate, as the examinations thus far have been for the reasons described above, the Board must remand the case. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. The VA examination reports are inadequate because of the absence of reasons and bases to support the examiners' conclusions; therefore, new examinations and addendum opinions are needed. Accordingly, the matters of service connection for thoracolumbar cervical spine disorders are REMANDED for the following action: 1. Schedule the Veteran's claims file for review by the same VA examiner (if available) who conducted the December 2010 VA examination of the Veteran's spine. For purposes of addressing the requested opinions, the examiner is to assume that the Veteran's endorsement of carrying a heavy back pack (approximately 120 pounds) is accurate. The examiner should review the entire claims file and offer the following opinions: a. Is it at least as likely as not (i.e., to at least a 50 percent degree of probability) that any of the Veteran's current thoracolumbar disorders are related to service, to include as due to carrying a heavy back pack in service? b. Is it at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's in-service complaints of neck pain were an earlier manifestation of the currently claimed cervical spine disorder? c. If the answer to the above is "no," is it at least as likely as not that any of the Veteran's current cervical spine disorders are otherwise related to service, to include as due to carrying a heavy back pack in service? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. If the examiner concludes that there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. If it is determined that an additional in-person examination of the Veteran is necessary in order to provide the requested opinion, one should be arranged. 2. After completing all indicated development, readjudicate the claims of service connection for migraine headaches, a thoracolumbar disorder and a cervical spine disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and the Veteran should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs