Citation Nr: 1335009 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-32 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for headaches (claimed as muscle contraction headaches). 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to an initial evaluation for the service-connected major depression, in excess of 10 percent prior to March 29, 2012, and in excess of 50 percent thereafter. 4. Entitlement to an initial compensable evaluation for the service-connected residual scar, status postoperative right ankle fracture with scar (right ankle disability), prior to October 20, 2010 (excluding the period of convalescence from December 29, 2008 to January 31, 2008), and in excess of 10 percent thereafter. 5. Entitlement to an initial compensable evaluation for the service-connected degenerative joint disease of the thoracolumbar spine (back disability), prior to April 5, 2011, and in excess of 10 percent thereafter. 6. Entitlement to an initial compensable evaluation for the service-connected impingement syndrome of the left shoulder, status post arthrotomy, with residual scar (left shoulder disability), prior to August 20, 2012, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1975 to June 1978, from March 1979 to November 1983, from February 1996 to June 2003, and from October 2005 to April 2008. This matter comes 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 Denver, Colorado. In a September 2012 rating decision, the RO fully granted service connection for left ear hearing loss; therefore, that issue is not in appellate status and is not before the Board. While the October 2012 supplemental statement of the case indicated that the issues include entitlement to an earlier effective date for the grant of service connection for left ear hearing loss, an appeal as to that issue was not perfected by the Veteran. The Veteran's June 2013 statement confirms that an earlier effective date claim is not being pursued. In June 2013, the Veteran testified in a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is located in the Veteran's file in "Virtual VA." In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. The Veteran submitted a claim of service connection for a neck disability in October 2012 and subsequently withdrew the claim in December 2012 before it was adjudicated by the RO. It appears that the issue regarding service connection for a neck disability has again been raised by the Veteran during the June 2013 Board hearing. As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. As such, the issue is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had headaches during active service. 2. The Veteran had headaches since service separation. 3. The Veteran's current headaches were incurred in service. 4. During the Board hearing in June 2013, prior to the promulgation of a Board decision, the Veteran indicated that he no longer wished to pursue his appeal seeking service connection for right ear hearing loss and higher initial evaluations for service-connected major depression, right ankle disability, back disability, and left shoulder disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for withdrawal of an appeal by the Veteran regarding the issues of service connection for right ear hearing loss and higher initial evaluations for service-connected major depression, right ankle disability, back disability, and left shoulder disability, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for headaches has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations 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). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, a headache is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Headaches The Veteran claims that his headaches originated in service. Specifically, he contends that during service, he was required to jump out of planes. He described having hard landings, which caused neck pain and headaches. See Hearing Transcript at 3. The Board first finds that the Veteran had headaches in service. Multiple service treatment records from October 2006, December 2006, January 2007, May 2007, June 2007, September 2007, October 2007, December 2007, January 2008, and March 2008 indicate the Veteran's complaints of headaches. After a review of all the evidence of record, lay and medical, the Board next finds that the evidence is at least in equipoise on the question of whether the Veteran experienced headaches since service separation. Favorable evidence includes the Veteran's claim, submitted in May 2008, one month after service separation. Indeed, at that time, the Veteran contended that he had headaches and sought service connection for the condition. Additional favorable evidence includes the August 2008 VA examination where the Veteran complained of headaches. At that time, he was diagnosed with muscle contraction headaches. The Veteran's testimony during the June 2013 Board hearing also provides favorable evidence for the claim. There, the Veteran reported that when he was discharged from active duty, he sought treatment for the headaches from VA. Hearing Transcript at 4. The Veteran is competent to provide evidence regarding his headaches, including since service separation, as such symptoms are readily apparent. In addition, the Veteran can attest to factual matters of which he or she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). It therefore follows that the Veteran is competent to testify that he sought treatment for headaches after service separation. Indeed, evidence of record indicates that in a September 2008 VA treatment report, the Veteran complained of headaches. Here, such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). Furthermore, the Board finds the Veteran's allegations credible as they have been consistent throughout the claim and appeal process. In short, with regard to the Veteran's assertions that he has had headaches following service, the Board finds that the Veteran is competent and credible to report the onset of symptoms of that disability. See Charles, 16 Vet. App. 370; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board will resolve reasonable doubt to find that the Veteran had headaches since service. In this regard, the Board must again note the recent case, Walker v. Shinseki, 708 F.3d 1331) from the United States Court of Appeals for the Federal Circuit (Federal Circuit). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). While the Veteran's headaches are not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found that he has had headaches since service separation. As discussed below, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the headaches began in service, and were so incurred in service. The finding that the Veteran has had headaches since service is supportive of the claim overall. In this case, the Board finds that the Veteran has a current disability of headaches. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current headaches are related to service. In August 2008, the Veteran was afforded a VA examination. While he was diagnosed with muscle contraction headaches, the VA examiner did not opine as to the etiology of the headaches. As such, the Board finds the VA examination inadequate for VA compensation purposes. See Barr, 21 Vet. App. at 312. As there is no adequate medical nexus opinion as to the etiology of the Veteran's headaches, the Board must look to the remaining evidence of record to determine whether service connection is warranted. Here, the Veteran was diagnosed with headaches after discharge. This diagnosis coupled with the evidence pertinent to service, specifically, the service treatment records indicating the Veteran's report of headaches in service and his competent and credible lay statements of headaches in service and since service, establishes that the headaches were incurred in service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for headaches have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Withdrawal of Issues of Service Connection for Right Ear Hearing Loss and Higher Initial Evaluations for Service-connected Major Depression, Right Ankle Disability, Back Disability, and Left Shoulder Disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the June 2013 hearing before the undersigned, the Veteran withdrew from consideration the claims of entitlement to service connection for right ear hearing loss and higher initial evaluations for service-connected major depression, right ankle disability, back disability, and left shoulder disability. As the Veteran has withdrawn an appeal on those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed without prejudice. ORDER Service connection for headaches is granted. Service connection for right ear hearing loss is dismissed. An initial evaluation for the service-connected major depression, in excess of 10 percent prior to March 29, 2012, and in excess of 50 percent thereafter is dismissed. An initial compensable evaluation for the service-connected right ankle disability, prior to October 20, 2010 (excluding the period of convalescence from December 29, 2008 to January 31, 2008), and in excess of 10 percent thereafter is dismissed. An initial compensable evaluation for the service-connected back disability, prior to April 5, 2011, and in excess of 10 percent thereafter is dismissed. An initial compensable evaluation for the service-connected left shoulder disability, prior to August 20, 2012, and in excess of 10 percent thereafter is dismissed. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs