Citation Nr: 1335280 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-11 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for migraine headaches as secondary to service-connected tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1956 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. An informal Decision Review Officer (DRO) conference attended by the Veteran and his representative was held in December 2010, in lieu of the DRO hearing scheduled on that date. In December 2011, the Veteran presented testimony relevant to the appeal at a Board hearing before the undersigned Veterans Law Judge (VLJ), which was held at the Newark RO. A transcript of the Board hearing is of record. In May 2013, the Board remanded the appeal for further evidentiary development. The case now returns to the Board following completion of the ordered development and is ready for disposition. The Veteran has raised the issue of service connection for an irregular heartbeat as secondary to tinnitus. See September 2013 letter from the Veteran. Because the issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). (CONTINUED ON NEXT PAGE) FINDING OF FACT The Veteran's migraine headaches had their onset many years after service separation and were not caused or aggravated by service-connected tinnitus. CONCLUSION OF LAW Migraine headaches were not caused or aggravated by service-connected tinnitus, were not incurred in active military service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a March 2010 notice letter sent prior to the initial denial of the claim for service connection, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits on a direct and secondary basis, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established, which satisfied Dingess notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. Post-service treatment records identified as relevant to the appeal, to include those found in the electronic files through the Virtual VA system and Veterans Benefits Management System (VBMS), have been obtained or otherwise submitted. In May 2010, the Veteran underwent a VA medical examination in connection with the appeal. The VA medical examiner considered the Veteran's reported history of symptoms, current symptoms, reviewed the claims file, and performed a thorough examination, to include a (CT) scan of the head. The VA medical examiner diagnosed migraine headaches and provided a medical opinion on the secondary theory of causation based on an accurate medical history, consideration of the Veteran's current complaints and treatment, and the findings shown on examination. An addendum VA medical opinion addressing the secondary theory of aggravation was obtained in August 2013. The VA medical opinions were based on adequate facts and data and supported by adequate rationale. For these reasons, the collective VA medical opinions are deemed adequate for the purposes of this adjudication. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing: (1) fully explains the issues and (2) suggests the submission of evidence that may have been overlooked. At the December 2011 Board hearing, the VLJ identified the issue on appeal, clarified the Veteran's contention regarding the etiology of his migraine headaches, and held the record open for 60 days following the Board hearing in order to allow him additional time to submit medical evidence in support of the appeal, to include a medical opinion. The Veteran through the representative demonstrated an understanding of the evidence needed to substantiate the appeal. For these reasons, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were fulfilled. In May 2013, the Board remanded the appeal and directed the AOJ to ask the Veteran to identify any source of VA or non-VA treatment for the migraine headaches not previously obtained and, thereafter, obtain an addendum VA medical opinion addressing the secondary theory of aggravation. After the ordered development had been accomplished, the AOJ was to readjudicate the claim. The record shows that a letter was sent to the Veteran in July 2013 asking him to provide information on any VA and non-VA treatment received for migraine headaches. The Veteran did not respond to the letter. An addendum VA medical opinion addressing the secondary theory of aggravation was obtained in August 2013, and the service connection claim was readjudicated later that month. In consideration of the foregoing, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In this case, the Veteran's service treatment records are fire-related and unavailable for review. The Veteran has been so notified and has stated that he does not have any service records in his possession. See September 2007 letter to the Veteran from the National Personnel Records Center (NPRC) (stating that the records are fire-related); and April 2008 letter from the Veteran (stating that he was unable to get any military records). Moreover, the Veteran does not contend, and the evidence does not show, that migraine headaches had their onset during service, have continued since service, manifested to a compensable degree within one year of service, or are otherwise etiologically related to service. The Veteran's sole contention is that service-connected tinnitus caused or aggravated the migraine headaches; therefore, the unavailability of the service treatment records is not relevant to the current appeal. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (stating that VA has a duty to develop and adjudicate a claim as to those theories of entitlement raised by the Veteran or reasonably raised by the record). Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Service connection may be granted for disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also 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. § 1131; 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 Veteran is currently diagnosed with migraine headaches. Migraine headaches are a "chronic disease" listed under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system; therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In rendering a decision on appeal, the Board must 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Service Connection Analysis for Migraine Headaches The Veteran contends that he developed migraine headaches secondary to worsened tinnitus. He asserts that his nonservice-connected Lyme disease and service-connected tinnitus caused or aggravated the migraine headaches. See March 2010 VA Form 21-4138 and December 2011 Board hearing transcript, pages 2-3. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran's service-connected tinnitus caused or aggravated migraine headaches. When the Veteran underwent VA medical examination in May 2010, the VA medical examiner diagnosed migraine headaches and opined that there is no causal relationship between the headaches and service-connected tinnitus. In the August 2013 VA addendum opinion, the VA medical examiner explained that the Veteran's tinnitus was a subjective symptom of ringing in the ears and had no connection or relation to migraine headaches; therefore, it was less likely as not that the Veteran's migraine headaches were aggravated or caused by tinnitus. Because the VA medical examiner had the requisite medical expertise and training to render a competent medical opinion on whether a causal or aggravation relationship between tinnitus and migraine headaches exists, as well as adequate data on which to base the medical opinion, and provided sufficient rationale for the medical opinion, the Board finds the VA medical opinion to be of great probative value. The Board notes that, on the VA Form 9, the Veteran stated that he had been treated for Lyme disease and alleged that he had submitted medical treatise evidence that linked painful headaches to Lyme disease and tinnitus. He also stated that he had submitted a positive medical opinion from a treating physician attributing his headaches to tinnitus. Upon review of the referenced April 2010 medical article written by a professor of otolaryngology, the Board finds that it is of no probative value. Unlike the Veteran who has complained of headache pain in the occipital region or throughout the head, the patient in the medical article specifically complained of painful spasms and pulsing in the ears; therefore, the patient discussed in the article had different symptoms than the Veteran. Also, in the medical article, the professor of otolaryngology concluded that the cause of the patient's ear problems was Lyme disease, and did not state that Lyme disease and tinnitus caused migraine headaches, as has been contended by the Veteran. The Board has also considered the copy of a page from a Natural Healing book provided by the Veteran, as well as the January 2011 medical opinion from his treating medical provider. The page from the Natural Healing book notes that symptoms accompanying tinnitus can include headaches, digestive disorders, learning disabilities, irritability, insomnia, and fatigue. While the symptom of headaches may "accompany" tinnitus, no causative or aggravation relationship between tinnitus and headaches is indicated; therefore, this treatise evidence is of no probative value. Also, the January 2011 treatment record noting an assessment of chronic and recurrent headache that "may be" a secondary effect of co-existing tinnitus is noted in speculative terms and unsupported by rationale; therefore, the treatment record is also of no probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence). Although the Veteran has asserted that the migraine headaches were caused or aggravated by tinnitus, he is a lay person and does not have the requisite medical expertise to be able to render a competent medical opinion regarding the cause of migraine headaches. The etiology of the disability is a medical etiological question dealing with the origin and progression of the Veteran's neurologic system, and migraine headaches are diagnosed primarily on objective clinical findings and physiological testing. Thus, while the Veteran is competent to relate symptoms of headache that he experienced at any time, he is not competent to opine on whether there is a link between migraine headaches and service-connected tinnitus, because such diagnosis requires specific medical knowledge and training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As stated above, the Veteran has not contended, and the evidence does not show, that symptoms of migraine headaches had their onset during service, manifested to a compensable degree during the first post-service year, have continued since service, or are otherwise causally or etiologically related to service. See December 2011 Board hearing transcript, page 3 (noting the Veteran's report that he had had migraine headaches for the last couple of years); see also May 2010 VA medical examination report (noting the Veteran's report that his headaches began three to four years ago). Therefore, no further analysis regarding those theories is necessary as service connection on a direct or presumptive basis is not warranted. Thus, in summary, the VA medical opinion obtained in connection with the appeal is adequate and weighs against a finding that that there is a causal or aggravation relationship between tinnitus and migraine headaches. The medical treatise evidence and private medical opinion submitted by the Veteran in support of the appeal are speculative and do not support the contention that migraine headaches are caused or aggravated by tinnitus; therefore, they are of no probative value. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for migraine headaches and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for migraine headaches is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs