Citation Nr: 1333558 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-36 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for migraine headaches as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had service from September 1984 to July 1987, and from September 1988 to September 1992. This matter come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which, in part, denied service connection for migraine headaches. In a September 2011 decision, the Board remanded this issue for additional development. FINDING OF FACT The most probative evidence of record does not support a finding that the Veteran has a disability manifest by headaches resulting from undiagnosed illness that was shown during active service; and a current chronic headache disability is not shown to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW The Veteran's claimed headaches were not incurred in or aggravated by active service, nor may they be presumed to be related to his period of service in the Persian Gulf. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in an August 2006 letter, prior to the date of the issuance of the appealed January 2007 rating decision. The August 2006 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded a VA examination in November 2006. The Board finds that this examination was thorough and adequate on which to base a decision in this appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In the present case, the Veteran has contended that he suffers from a headache disability that is a manifestation of an undiagnosed illness resulting from his service in the Persian Gulf region. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (codified at 38 C.F.R. § 3.317(a) (1) (2012)). For purposes of 38 C.F.R. § 3.317 , there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a) (5) (2012); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a) (2) (ii) (2012). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. §3.317(a) (3) (2012). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b) (2012). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a) (4) (2012). A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (2012). The Veteran's DD 214 Form reflects that he was awarded the Southwest Asia Service Medal and the Kuwait Liberation Medal. As such, he is considered a Persian Gulf Veteran for purposes of 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has a current headache disability due to an undiagnosed illness stemming from his service in Southwest Asia. The Veteran's enlistment examination in June 1984 was negative for complaints or treatments regarding headaches. A July 1988 reenlistment examination was also negative for complaints or treatments regarding headaches. A January 1992 service treatment record noted that the Veteran was involved in a low speed motor vehicle accident where he bumped the back of his head and his shoulders. He presented with complaints of a headache and backache with no loss of consciousness or confusion. His condition upon release was improved and he had no focal deficits. A December 1992 Report of Medical History and examination for the Reserves was negative for complaints of a head injury or headaches. The Veteran underwent a VA examination in November 2006. The examiner reviewed the Veteran's claims file medical records and noted that this examination was mainly for undiagnosed illnesses, such as headaches, muscle pain, twitching, joint pain, and stiffness. The Veteran reported that he served in the Persian Gulf for about 7 months. During his active duty, he did not receive any major head injuries. He reported getting headaches on and off on an average of once or twice a week for the last 3 to 4 years. The last episode of headaches was a few days ago. He reported that his headaches had not been since 1991 as he had only been experiencing them for the last 3 to 4 years. The headaches were mostly in the right frontal area and were throbbing and excruciating in nature. They usually lasted for 1 to 2 hours. He indicated that his headaches were related to certain conditions such as anger, stress, anxiety and prolonged laughing. The headaches were associated with nausea and dizziness sometimes. These were also associated with phototobia. He again denied any history of major head injuries or strokes. The diagnosis was chronic intermittent headaches, most likely migraine, for the last 3 to 4 years by history. The examiner opined that the Veteran's headaches were not likely related to an unknown Gulf War medical condition. In April 2008, the Veteran presented to the Detroit VA Medical Center (VAMC) with complaints of headaches that he had experienced 1 to 2 times a week since he was discharged from the military in 1992. The diagnosis was chronic tension headaches. A September 2011 treatment report noted a past history of tension headaches. Under the circumstances of this case, the Board concludes that service connection for migraine headaches to include as due to an undiagnosed illness is not warranted. As a threshold matter, the Board notes again that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. With regard to granting service connection on a presumptive basis under 38 C.F.R. § 3.317, the Veteran was diagnosed at the November 2006 VA examination with chronic intermittent headaches, most likely migraine. The examiner noted that the Veteran's headaches were not likely related to an unknown Gulf War medical condition. Therefore, as the Veteran has been noted as having a diagnosed migraine/tension headache disability which is not due to an undiagnosed illness, service connection for headaches as due to an undiagnosed illness cannot be granted on a presumptive basis under 38 C.F.R. § 3.317. With regard to granting service connection on a direct basis, the Board finds that the preponderance of the evidence is against a finding that his current headache disability is related to military service. As addressed above, there is a current diagnosis of chronic intermittent headaches; hence, the first element of service connection is satisfied. However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board acknowledges that the Veteran's available service treatment records demonstrate that the Veteran was involved in a low speed motor vehicle accident in January 1992 where he bumped the back of his head and his shoulders and presented with complaints of a headache and backache with no loss of consciousness or confusion. The service treatment records however, are negative for any or diagnoses of any chronic headache disorders as the headache complaints were medically addressed in service, and appear to have been of an acute and transitory nature. The Veteran's primary complaints regarding the motor vehicle accident appeared to have involved his neck and back and upon his release, it was noted that his condition had improved. Additionally, a December 1992 Report of Medical History and examination for the Reserves was negative for complaints of a head injury or headaches. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current headache disability and the Veteran's military service. Therefore, as there is no medical evidence linking a current diagnosis of headaches to service, this claim must be denied on a direct basis. To the extent that the Veteran himself contends that a medical relationship exists between his current claimed headache disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board recognizes that a lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veterans's claimed headache disability to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current headache disability and his service, to include as due to an undiagnosed illness. As such, the Board ascribes far more weight to the conclusions of the VA examiner who concluded that the Veteran's headaches were not likely related to an unknown Gulf War medical condition. See Jandreau, 492 F.3d at 1377. In sum, the Board finds that service connection for migraine headaches, to include as due to an undiagnosed illness, must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for migraine headaches as due to an undiagnosed illness is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs