Citation Nr: 1334689 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-24 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from February 1980 through June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which among other issues denied service connection for headaches. A timely Notice of Disagreement (NOD) as to that issue was received in February 2008. After a Statement of the Case addressing that issue was provided in July 2008, the Veteran perfected his appeal in August 2008, via VA Form 9 substantive appeal. This matter was subsequently remanded by the Board in July 2010 for further development, to include: verifying the Veteran's representative as being Vietnam Veterans of America; obtaining in-service clinical treatment records from Ft. Leonard Wood Hospital; obtaining personnel records from the Veteran's reported National Guard service from April 1978 through June 1982; obtaining VA treatment records for treatment from January 1983 through December 1998, from October 2002 through April 2007, and from July 2007 through the present; obtaining treatment records from January 1998 through 2000; and arranging the Veteran for a VA examination of his claimed depressive disorder. After some efforts were made to comply with the directed remand action, the matter was returned to the Board. In August 2011, the Board remanded this matter again, after determining that the previously directed remand actions were not performed adequately. After further efforts to perform the previously directed remand action was performed, the matter was returned to the Board for its consideration. In an April 2013 decision and remand, the Board remanded the issue of entitlement to service connection for headaches once again so that the Appeals Management Center (AMC) could undertake efforts to obtain records for any treatment received by the Veteran for his headaches since June 2010; scheduling the Veteran for a new VA examination to examine the nature and etiology of his current headache complaints; and readjudicating the Veteran's claim. The Board is satisfied that this development action has been performed and is prepared to proceed with its de novo consideration of this matter. This appeal also initially included the issue of entitlement to service connection for depression. That issue, however, was denied in the Board's April 2013 decision and remand and is no longer before the Board on appeal. FINDING OF FACT The Veteran's headaches have not been shown as being related to the Veteran's headaches during service or to any injury or illness incurred by the Veteran during his active duty service. CONCLUSION OF LAW The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the issue of the Veteran's entitlement to service connection for headaches, a pre-rating letter mailed to the Veteran in December 2007 notified him of the information and evidence needed to substantiate his claim. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's January 2008 rating decision. Thus, because the VCAA notice that was provided was legally sufficient, VA's duty to notify has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records (to include clinical treatment records from Ft. Leonard Wood Army Hospital), service personnel records, and identified and pertinent VA and private treatment records have been associated with the claims file. The Veteran was also afforded VA examinations in August 2002 and May 2013 to determine the nature and etiology of his headaches. These examinations and opinions, along with the other evidence of record, are fully adequate for the purposes of determining the etiology of the Veteran's headaches. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In his claims submissions and multiple lay statements, the Veteran alleges that he currently experiences headaches that have been continuous since his active duty service. Additional lay statements received from his sisters in March 2008 attest that they observed the Veteran experiencing headaches. Other lay statements received in July 2013 from the Veteran's co-workers, who have known the Veteran since October 2010, also express that they have observed the Veteran complaining of headaches. Somewhat consistent with the Veteran's assertions, service treatment records show that the Veteran was treated for headaches on multiple occasions during his active duty service. It is unclear from the service treatment records, however, as to what the nature of the Veteran's in-service headaches was. In that regard, a July 1980 service treatment record reflects a diagnosis of vascular headaches generally. After the Veteran continued to complain of ongoing headaches, in August and December of 1980, he was diagnosed with tension headaches. In March 1982, the Veteran reported that he had been having ongoing headaches that were occurring daily. Indeed, during his May 1982 separation examination, he reported having a history of frequent or severe headaches. Nonetheless, a physical examination performed at that time apparently did not reveal any abnormalities. In a May 2013 statement and during his May 2013 VA examination, the Veteran intimates that he was treated for headaches at Cook County Hospital shortly after his separation from service. The Board notes that records from that facility were obtained by VA in July 2002, via signed release provided by the Veteran. Despite the Veteran's current contention that he was treated at that facility for headaches, the records obtained simply do not correspond to any treatment related to the Veteran's headaches. Indeed, the post-service treatment records contain only an isolated complaint of headaches, reported by the Veteran during an August 2002 VA psychiatric examination. The examiner from the August 2002 examination noted that the service records did show that the Veteran had headaches during his active duty service and that his headaches remained present since that time. Nonetheless, he does not expressly opine that the Veteran's current headaches are related in any way to the headaches that he experienced during active duty service. During VA treatment in September 2002, the Veteran reported to his treating VA physician that, although he had a previous history of cluster headaches, these headaches had essentially stopped. The subsequent post-service treatment records do not indicate any further complaints or medical treatment for headaches until VA treatment in August 2011. At that time, the Veteran reported that his headaches returned after a prolonged several year period of remission. The Veteran appeared to attribute his headaches to increased stress in his life that was related to his new night shift job and a death in the family. Regarding his current headaches, he stated that they were occurring three or four times per day, lasted periods of up to 20 to 30 minutes, and were associated with photophobia, phonophobia, nausea, and irritability. The veteran complained of a headache during the physical examination, however, this appeared to resolve and subside during the examination. Notably, an examination of the head, eyes, ears, nose, and throat revealed normal cranial nerves, normal temporary arteries, and normal temperomandibular joint. The treating VA physician diagnosed migraine headaches with some features of a cluster headache. Metoprolol was prescribed, with instructions to consider steroid treatment in the future for the aforementioned cluster headache features, in the event that the Metoprolol did not provide a result. Subsequent VA treatment records through April 2013 do not reflect any further treatment or complaints related to the Veteran's headaches; however, problem lists in these records continue to identify unspecified migraines. Pursuant to the Board's April 2013 remand, the Veteran was afforded a VA examination of his headaches in May 2013. In reviewing the claims file in conjunction with the examination, the examiner noted a medical history that is essentially consistent with that outlined above. In relation to the Veteran's in-service headaches, the examiner also noted that the in-service treatment episodes varied in their diagnostic type and were not consistent. Regarding his current symptoms and treatment, the Veteran reported that he was having headaches that occurred typically in the mornings or evenings, radiating into his right temporal area, and lasted for periods of up to one hour. He again described his headaches as being pulsating or throbbing and as being associated with sensitivity to light and sound. Historically, he stated that his headaches began during boot camp and he mentioned an incident in which he was knocked out in a fight. He reported that he was no longer taking Metoprolol due to the high cost of co-payments and prescriptions and stated that he was self-treating with over-the-counter medications. He stated that he was not currently receiving medical treatment for his headaches. Despite the foregoing complaints, objective diagnostic testing performed during the examination did not reveal any abnormalities. The examiner diagnosed migraine headaches and tension/cluster headaches, but opined that the Veteran's headaches were less likely than not incurred in or caused by his active duty service, or, aggravated by his active duty service. As rationale, the examiner noted the foregoing history and opined further that the documentation as to his headache type and of post-service treatment for his headaches is not substantiated in the record. Although the evidence in this case shows that the Veteran has current headaches diagnosed as migraine headaches and tension/cluster headaches, the evidence does not show that these headaches are related in any way to the headaches experienced by the Veteran during his active duty service. Similarly, the evidence does not show that the Veteran's current headaches are related to any other injury or illness incurred during service. As noted above, the evidence shows that, although the Veteran was treated for headaches during service, he did not report any headaches until 2002, approximately 20 years after his separation from service. Although statements from the Veteran's sisters attest that they have observed the Veteran experiencing and complaining of headaches, they do not provide any insight as to the timeframe in which the Veteran's headaches occurred and in that regard do not provide any evidence that the Veteran's headaches were continuous or uninterrupted from his active duty service. Such information is crucial in this case, particularly in view of the Veteran's own statement during treatment that his "cluster headaches" had subsided for several years before the return of his headaches in 2011. Similarly, although the statements received from the Veteran's co-workers also attest that they have witnessed the Veteran's headaches, both co-workers acknowledge that they did not know the Veteran before October 2010. To that extent, neither co-worker is competent to provide a statement as to whether the Veteran's headaches had been present and continuous since the Veteran's service. For these reasons, the Board finds that the lay statements raised by the Veteran's sisters and co-workers are not entitled to significant probative weight. As noted above, an August 2002 VA opinion was only able to state that the Veteran had headaches during service, and, that the headaches being experienced by the Veteran at that time appeared to be continuing since service. To the extent that this opinion may be construed as offering an opinion as to the etiology of the Veteran's current headaches, the Board notes that this opinion appears to be based entirely upon the Veteran's reported history. The Board acknowledges that a medical opinion may not be discounted solely because it is based on history provided by the veteran, without also evaluating the credibility and weight of the history upon which the opinion is predicated. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In that regard, and as noted above, the post-service treatment records and provided lay assertions simply do not reflect any noted complaints of headaches or indicate any treatment for headaches prior to 2002. In that regard, the Board may expect that any evaluation or treatment related to reported symptoms prior to 2002 would be memorialized in the treatment records. Moreover, there is no indication in the record that the assembled VA treatment records are incomplete. Given the absence of any noted post-service complaints or treatment pertaining to headaches before 2002, there is simply no objective evidence in the record which supports the Veteran's assertion that he had continuous headaches from his active duty service. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In view of the foregoing, and given the Veteran's own acknowledgements that he has experienced headaches of varying types, and that his headaches have subsided for long periods, the Board is unable to attach probative weight to the Veteran's assertions of continuity, and in turn, finds that the history upon which the August 2002 VA examiner relied was unsubstantiated and not credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in addressing lay evidence and determining its probative value, attention must be paid to both 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")). For these reasons, the Board also is unable to attach significant probative weight to the August 2002 opinion concerning the Veteran's headaches. By contrast, the negative May 2013 opinion is supported by a complete discussion which reflects the relevant facts and evidence and a full and accurate understanding of the Veteran's medical history that is consistent with the facts shown in the record. In view of the same, the Board is inclined to assign far greater probative weight to the May 2013 opinion than it does to the August 2002 opinion or to the Veteran's lay assertions. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that the Board's duty is to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, may favor one medical opinion over another). Overall, the preponderance of the evidence is against the Veteran's claim of service connection for headaches, and this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Service connection for headaches is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs