Citation Nr: 1333851	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  06-15 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for a disability manifested by headaches to
include migraine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1968 to
February 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating
decision in July 2004 of the Department of Veterans Affairs (VA) Regional Office
(RO) in Seattle, Washington.

In September 2009, January 2012, and May 2013, the Board remanded the case for further development.

The Veteran did not respond to the Board's request in February 2013 to clarify his appointment of representation; therefore, the Veteran is deemed to represent himself in this matter.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

Headaches result from service-connected major depressive disorder.


CONCLUSION OF LAW

The criteria for service connection for headaches, resulting from service-connected major depressive disorder, are met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).




The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the Board is granting the claim of service connection, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of 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 military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service).

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, also referred to as the "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).



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).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).



Evidence

The Veteran's service treatment records are no longer available, as VA misplaced the Veteran's original file, and efforts to obtain duplicates of the records have been unsuccessful.  

The available medical evidence of record reflects that during the Veteran's 1977 VA hospitalization, he complained of intermittent throbbing headaches, which were diagnosed and treated as migraine headaches.

In July 2001, the Veteran reported experiencing headaches when seeking treatment for chest pain, and he stated that he took aspirin for his occasional headaches.

In April 2002, the Veteran reported experiencing a headache, for which he was taking a non-prescription medication.  At this time, he was treated for a viral upper respiratory infection.  

In August 2002, the Veteran reported experiencing a headache during his hospitalization for rectal bleeding.  The Veteran also reported a history of headaches.  

A May 2003 gastrointestinal evaluation reflects the Veteran's report of experiencing two types of headaches, one being a more frequent "dull, continuous kind of an aching" and the other "severe diffuse migraines," which occur once or twice a year.

A July 2004 disability evaluation notes the Veteran's past medical history of chronic headaches, and he reported experiencing two migraines per year. 

VA records reflect that in August 2005, August 2007, and August 2008, the Veteran reported experiencing a headache at the time of treatment.  In October 2009, the Veteran reported experiencing headaches, which were referred to as migraines.  



In December 2010, the Veteran reported experiencing his "normal" intermittent headaches.

On VA examination in March 2011, the Veteran reported the onset of his headaches at the time of his VA hospitalization for depression in 1978 [sic].  The VA examiner, a physician assistant, diagnosed the Veteran with rebound headaches, finding no evidence of migraine.  The VA examiner stated that the headaches were not caused by or a result of service-connected major depressive disorder.  The VA examiner attributed the headaches to noncompliance with diabetic and antihypertensive medications, morphine addiction, and use of the nonprescription medication, which the VA examiner stated was a known cause of rebound headaches.  

On VA examination in July 2012, the Veteran reported experiencing headaches during periods of increased stress.  The VA examiner, a psychiatrist, stated that the headaches were at least as likely as not (50 percent or greater probability) proximately due to or the result of the service-connected major depressive disorder.  The VA examiner stated that the headaches appeared clinically to be the result of stress or depression as opposed to any organic condition.  

Analysis

Under such circumstances, such as in this case, where the Veteran's service treatment records are unavailable, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule.  Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  






The Veteran is competent to describe the onset and nature of his headaches, which are capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).

The Veteran is also credible in describing the onset of the headaches during an episode of depression in 1977 (mistakenly referred to as 1978 by the Veteran during the 2012 VA examination), and experiencing recurrent headaches since that time.  The Veteran's report is corroborated by contemporaneous VA hospitalization treatment records, which reflect the Veteran's treatment for headaches.

Given the competency and credibility of the Veteran's statements and testimony, the Board finds that the Veteran's lay evidence is persuasive evidence in favor of the claim. 

With regard to the two medical opinions of record, the Board finds that the 2011 VA medical opinion should be afforded no probative weight, as the opinion was rendered without review of the claims file.  (Shortly after this VA examination, the Veteran's claims file was determined to be unavailable.)  Accordingly, the medical opinion does not consider the Veteran's documented treatment for headaches during an episode of depression in 1977, or his documented treatment for headaches from 2001 to the present.

Conversely, while the 2012 VA examiner did not expressly consider this documented treatment, the examiner did consider the Veteran's reported history of his headaches, with onset in during a period of depression in 1977, and the Veteran's report of his current headache symptomatology coinciding with his episodes of increased stress.  Accordingly, the Board concludes that this opinion was predicated on an accurate medical history and properly considered the Veteran's lay testimony.  


See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

In weighing the evidence, the Board finds that service connection for headaches as resulting from service-connected depression is warranted, based on the Veteran's competent, credible testimony and the probative 2012 VA medical opinion.  Thus, it is at least as likely as not that the Veteran's headaches are related to service-connected major depressive disorder, and service connection is established.  38 U.S.C.A. § 5107(b).

As the Board is granting service connection for headaches on a secondary basis, the Board need not address the theory of direct service connection.


ORDER

Service connection for headaches, resulting from service-connected major depressive disorder, is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs