Citation Nr: 1334933 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-17 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from May 1970 to January 1973 and from June 1981 to June 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision in which the Regional Office (RO) in Muskogee, Oklahoma, in pertinent part, denied service connection for degeneration of the neck and denied reopening a previously denied claim for service connection for migraine headaches. These matters were most recently before the Board in December 2012, when the Board reopened the previously denied claim for service connection for migraine headaches, and remanded the claims of service connection for migraine headaches and a neck disability for additional development. In a May 2009 substantive appeal, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. Subsequently, in a February 2011 submission, the Veteran withdrew his hearing request. The Board will, therefore, proceed with appellate consideration of the Veteran's appeal. 38 C.F.R. § 20.704(d) (2012). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see March 2013 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records dated from 2011 to 2012. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. As noted by the Board in December 2012, the issue of whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for depression has been raised by the record, but has not been adjudicated by the AOJ. See February 2011 statement from the Veteran. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was seen intermittently in service for complaints of headaches. While there are post service complaints of headaches, there is no evidence that the Veteran is diagnosed with a headache disorder. 2. There is no competent evidence that the Veteran has a diagnosed neck disability. 3. The Veteran has not shown good cause for his failure to report for VA examinations scheduled in March 2013 in connection with his claims for service connection for migraine headaches and for a neck disability. VA records show that the Veteran cancelled the March 2013 VA examinations and did not request to have the VA examinations rescheduled. CONCLUSIONS OF LAW 1. The Board is required to adjudicate the Veteran's claim for service connection solely on the basis of the evidence of record. 38 C.F.R. § 3.655(b) (2012). 2. Migraine headaches were not incurred in or aggravated by active military service and service incurrence or aggravation of a skin disability may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 1131, (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A neck disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the issues decided herein, the record reflects that the Veteran was provided the required notice in letters mailed in February 2008 and December 2012. Although the Veteran was not provided complete notice for both issues until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. See March 2013 Supplemental Statement of the Case (SSOC). There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs), service personnel records, and post-service medical records has been completed. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. In addition, the Board finds that no additional development for medical opinions or examinations is necessary. Pursuant to the Board's December 2012 Remand, the Veteran was scheduled for a VA examination in March 2013 to determine the existence and etiology of his claimed migraine headaches and neck disability. However, he chose not to report for this evaluation. The March 2013 SSOC also referenced the Veteran's failure to report for this examination. As such, it may be reasonably concluded that the Veteran was notified of his examination and of his obligation to participate in it. The Veteran did not respond and specifically did not contact VA to arrange for re-scheduling. In April 2013, the Veteran submitted a statement indicating that he waived his right to have VA wait a minimum of 30 days before certifying his appeal to the Board without any indication that wanted to reschedule the VA examinations scheduled in conjunction with his claims for service connection on appeal. Good cause for his failure to report for the examination has not been shown. Thus, the Board finds that VA fulfilled its duty to assist in its attempt to afford the Veteran a VA examination, and, in the absence of a showing of good cause as to why he did not appear, the claim should instead be adjudicated based on the available evidence of record. 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (which stipulates that the duty to assist is not always a "one-way street" and that a veteran may not "passively wait" for assistance). Evidentiary development is complete. As VA's duties to notify and assist are met, the Board will address the merits of the claims. Legal Criteria - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2012). Under 38 C.F.R. § 3.303(b) , an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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"). 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. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Migraine Headaches The Veteran claims entitlement to service connection for migraine headaches have as due to service. However, based on the evidence of record, the Board finds that service connection is not warranted. STRs show that the Veteran was seen at sick call on numerous occasions with complaints of headaches. Specifically, a May 1984 screening note reflects the Veteran's complaints of headaches of three days duration, as well as reported visual problems and symptoms of drowsiness, confusion, numbness and tingling. The Veteran presented at sick call again in March 1985 with complaints of a stiff neck and headaches. He was assessed with a muscular strain. In January 1989, the Veteran presented at sick call and reported an onset of occipital headaches and photophobia of three days duration. He was diagnosed with vascular headaches and provided with over-the counter medication. During a subsequent clinical visit in January 1989, the Veteran described severe headaches as well as symptoms of pain and sensitivity around his eyes when exposed to natural and man-made light. The treatment provider assessed him with migraine headaches of unknown etiology. The Veteran was seen again in May 1992 with complaints of headaches as well as a feeling of being "off balance." According to the Veteran, the pain had gotten so bad that he had to keep his eyes closed. He presented again in November 1992 with complaints of headaches, chest pains and shortness of breath. According to the Veteran, his headaches had been occurring on a frequent basis over the past four years. At an October 2000 VA examination conducted prior to the Veteran's separation from service, the Veteran did not report any complaints of headaches. No headache disability was diagnosed. In a March 2001 separation report of medical history, the Veteran reported a positive history of frequent or severe headaches. No headache disability was diagnosed on examination in March 2001. VA outpatient treatment records dated from January 2003 to May 2009 note that while the Veteran was treated for various complaints, he reported no complaints of headaches. No headache disability was diagnosed. A June 2009 VA outpatient treatment record notes that the Veteran complained of a headache and joint pains. VA outpatient treatment records show that the Veteran was seen in August 2010 with complaints of a headache since Friday or Saturday. He was taking Tylenol and Tramadol with no relief. In September 2010, the Veteran reported that he still had a headache across his forehead, and was still taking medication. He reported that, in the past, he had had an ear infection which caused the same symptoms. The Veteran was advised to call back if he had no improvement with medication. The Veteran presented at the VA outpatient clinic in April 2011, with complaints of ongoing headache of three to four days duration. The Veteran also reported to experience dizzy spells, blurry vision and the occasional presence of floaters. Additionally, the Veteran reported symptoms of pain and stiffness in his neck of one month duration. According to the Veteran, his headaches began in the posterior region of his neck and radiated down into his back. The treatment provider assessed the Veteran with headaches with neck pain and administered a toradol injection to help alleviate the pain. An April 2011 VA ophthalmology consultation report, and subsequent reports, also reflect the Veteran's complaints of increasing headaches. However, there is no evidence that the Veteran has been diagnosed with an actual headache disorder The Board remanded this case in December 2012 (in pertinent part) to schedule the Veteran for a VA examination to determine whether the Veteran had a headache disability related to in-service complaints of headaches and a diagnosis of migraine headaches in January 1989. However, the Veteran failed to report to a March 2013 VA examination, and has provided no reason or just cause for his absence. As noted above, the Board acknowledges that the Veteran's service treatment records reflect his in-service complaints of headaches and a diagnosis of migraine headaches in January 1989. The medical evidence, however, does not show that the Veteran has been diagnosed with a headache disorder at any time during the appeal, only that he has had complaints of headaches, first noted in June 2009 (more than 7 years after discharge from service). Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that the Veteran reports experiencing ongoing headache pain since service and that it is the type of symptom that he as a lay person is competent to report. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Nonetheless, it has been held that pain alone (in this case headache pain), without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez- Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (dismissing challenge to the issue whether pain, alone, can be considered a disability). While the VA examination scheduled in connection with the Board's remand may have yielded a medical diagnosis or other pertinent findings, to include an etiological opinion, the Veteran failed, without explanation, to report to that examination. Hence, the Board has no alternative but to evaluate the claim on the basis of the evidence of record. As indicated, this evidence simply is not supportive of the claim for service connection. While the Veteran is competent to report his observable symptoms, such as pain and/or discomfort, a diagnosis of an actual headache disorder requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77(Fed.Cir.2007). However, there is no evidence of record that the Veteran has specialized medical knowledge to be competent to offer medical opinion as to the etiology of his complaints of headaches which is necessary in this case as such involves a medially complex matter. See Grottveit v. Brown, 5 Vet. App. 91, 93(1993). Thus, as the evidence of record fails to reflect a currently diagnosed headache disorder, a basis upon which to grant service connection has not been presented. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of proof of a present disability, there can be no valid claim). Accordingly, the Veteran's appeal of this issue is denied. Neck Disability The Veteran contends that he currently has a neck disability that had its onset in service. See February 2011 statement from the Veteran, wherein he asserted that his current neck problems are similar to symptoms he experienced in service. In the alternative, he maintains that he has a neck disability that was caused by his migraine headaches. However, based on the evidence of record, the Board finds that service connection is not warranted. The Veteran's STRs note that the Veteran presented at sick call in March 1985 with complaints of stiffness in his neck and a preliminary evaluation revealed an assessment of a muscular strain. He was seen again one week later with ongoing complaints of stiffness in his neck of two weeks duration. Specifically, the Veteran described a "constant sharp pain" which started at the lower posterior region of his head and radiated past the neck into the shoulder. He was again assessed with a possible muscle strain. During a March 1995 clinical visit, the Veteran explained that he had been involved in an automobile accident earlier that week, and had been experiencing neck and back pain since this incident. According to the Veteran, he experienced sharp pain when attempting to move in certain directions, and the pain radiates into his left shoulder and prohibits certain movements. The Veteran was assessed with possible muscular and skeletal damage, and a subsequent evaluation also revealed an assessment of status post motor vehicle accident with multiple muscular pains. He was seen again in April 1999 with complaints of pain in his neck, shoulder, and low back region, which reportedly began during his physical training test that morning. The Veteran was once again assessed with a muscle strain/spasm. At an October 2000 VA examination conducted prior to the Veteran's separation from service, the Veteran did not report any symptoms of neck pain, but did report to experience muscle spasms around the left side of the upper back for approximately ten years. The Veteran also described pain with overuse of the left upper extremity, as well as intermittent flare-ups that were distressing in nature. In addition, the Veteran described a 10 year history of low back pain, and reported symptoms of weakness, fatigue, lack of endurance and stiffness. After conducting a musculoskeletal examination of the Veteran, the examiner diagnosed the Veteran with degenerative changes in the facets at L5 and S1 and additionally at T12, L1, L3 and L4. The Veteran was also diagnosed with a left parascapular muscle spasm. No neck (cervical spine) disability was diagnosed. At the March 2001 separation examination, the clinical evaluation of the spine was shown to be normal. The majority of the Veteran's post-service VA treatment records focus on treatment provided for his lumbar spine condition. However, VA treatment records dated in April 2011 reflect that the Veteran was seen on several occasions with complaints of pain and stiffness in his neck of one month duration. The treatment provider noted that the Veteran's neck pain was associated with his headaches. No diagnosis pertinent to the neck was noted. The Veteran has not submitted or identified any post-service medical evidence or treatment records specifically documenting a diagnosis of a neck disorder. In this regard, the Board remanded this case in December 2012 (in pertinent part) to have the Veteran examined to determine whether he has any current or recent neck disability related to service or service-connected disability. The Veteran failed to report to a March 2013 VA examination, and has provided no reason or just cause for his absence. Upon review of the evidence, the Board notes that although the Veteran was treated for neck problems on three occasions in service, no actual neck disability was noted in subsequent STRs, to include a separation examination report. More importantly, there is no post-service medical evidence of any neck disability. Although the Veteran has complained of pain and stiffness, see April 2011 VA outpatient treatment records, no underlying neck disability has been diagnosed. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, the Board finds that the criteria under Jandreau have not been met. There is no medical diagnosis of record to rely on, either contemporaneously or at a later time. Indeed, while the Veteran is competent to report experiencing neck pain, he lacks the necessary the requisite medical training, expertise, or credentials needed to render a diagnosis. Moreover, despite his past history of experiencing neck pain, physical examinations have disclosed no disability of the neck to account for these complaints. Pain alone is not a disability. See Sanchez-Benitez, supra. A current disability has not been established either through the clinical record or the Veteran's own statements. As such, the claim must fail. In sum, the record does not show the Veteran has had diagnosed neck disability at any time during the period under review. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a neck disability, and there is no doubt to be otherwise resolved. As such, the claim is denied. ORDER Service connection for migraine headaches is denied. Service connection for a neck disability is denied. ____________________________________________ L. A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs