Citation Nr: 1335287 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-33 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a headache disability, to include as secondary to service-connected dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran had active service from May 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia. This case was previously before the Board in April 2011 and June 2013, when it was remanded for further development, to include obtaining VA examinations and opinions. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. 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). FINDING OF FACT The Veteran's headache disability, to include migraine headaches, is not shown to have been incurred in service or to be caused or aggravated by any event therein or any service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a headache disability, to include as secondary to service-connected dysthymic disorder, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in December 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a June 2013 communication which addressed the issue of secondary service connection, and the claim was thereafter readjudicated in August 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA and VBMS folders which together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, as are lay statements from his fellow service members. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's April 2011 and June 2013 remands, VA provided the Veteran with medical examinations in August 2011 and August 2013. These examinations contained all information needed to rate the disability. Indeed, the examiners reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, these examinations, considered together, are adequate for VA purposes. Thus VA has complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the claimant. VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. 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 that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran was treated in service for a parasitic illness that later resulted in bronchopneumonia. While being treated on board ship, he reported symptoms including a high temperature and severe headaches. Records show he was treated for his illness in the hospital on Saipan and also on Guam during the period of late January through late March 1956. The diagnoses included infection with ascariasis, an intestinal parasite. The Veteran currently has a headache disability which has been diagnosed at times as tension headaches, and which he has described as migraine headaches. He has ongoing prescription medication through VA for his headaches. The Veteran has stated that his headaches have been recurrent since his illness in service and occur daily, sometimes accompanied by nausea, photophobia, and prostration. The Veteran has supplied written statements from former shipmates which attest to the Veteran's illness in 1956 and his complaints of severe headaches as a symptom of that illness. He also furnished a VA examiner with a copy of a statement by the corpsman that treated him in service that the Veteran was regularly furnished with aspirin for headaches, a fact which was not recorded in the service treatment records. VA treatment records show that the Veteran began seeking treatment for his ongoing headaches in approximately 2005. A September 2007 treatment note shows that the Veteran reported a history of headaches since he was in service, which had become worse, and that they were bad enough to wake him up three nights a week. Particularly bad headaches were signaled when the Veteran saw "purple lights," and he reported such symptoms as nausea and photophobia with headaches which could be prostrating as often as three or four times a week. Private treatment for ongoing headache problems is reflected in statements by the Veteran's personal physicians that he has been treated over several years for his headache pain. A VA examination report dated in August 2011 shows that the VA examiner considered the Veteran's statements regarding his symptoms and history of headaches, as well as the buddy statements that were submitted by the Veteran's former shipmates. The Veteran described six headaches a week, incapacitating for as much as 20 minutes each, with flashing lights, which had been diagnosed as migraines by his personal physician. The VA examiner offered the opinion that the Veteran's headaches were not caused by or related to his active service, to include his illness resulting from parasitic infection. The examiner based this opinion on the fact that none of the medical literature suggests any link between chronic headaches and infection with ascariasis, as well as the fact that the Veteran did not seek medical treatment for his headaches for some 50 years after his separation from service. An August 2013 VA examination report shows that the VA examiner noted that the Veteran had been diagnosed with migraines or migraine variant headaches based on his own report to physicians in 2005; one of the listed diagnoses was tension headaches. Treatment reports documented "non-migraine" headache pain which was prostrating in nature about every two months. After reviewing all of the records, the VA examiner noted that headaches are a subjective diagnosis and cannot be found on physical examination. In addition, the treatment records in service related to the Veteran's ascariasis and pneumonia did not list headaches during that time frame. Instead, the first documented evidence of complaints of headache symptoms was in 2005. The examiner stated that it was less likely than not that the Veteran's headache disability was incurred in or caused by the Veteran's illness in service. In addition, the examiner noted that while headaches can be a symptom of depression, the Veteran's diagnosed mental health disability is one of dysthymia, which is distinguishable from depression. Moreover, there is no medical evidence or literature suggesting that dysthymia or depression can cause or aggravate headaches. Therefore, the examiner concluded that the Veteran's headache disability (more likely to be tension headaches than migraine headaches) was not caused or aggravated by his mental health disability. The service treatment records show that the Veteran was treated for headaches as part of his parasite infection and subsequent bronchopneumonia. In addition, the Veteran's own statements and the lay statements of his shipmates support this history, and the Board accepts it as competent and credible evidence of headaches in service. After service, there is no documented medical treatment for headaches until approximately 2005, or nearly 50 years after service separation. While the Veteran has provided a history of ongoing headaches during that time period, which should be considered as showing a continuity of symptomatology, the absence of medical treatment or documented complaints for such a significant span of time must also be considered. While the lack of documented medical treatment or complaints during that time frame is not in itself dispositive of the issue, it is a factor that must be considered in evaluating the claim. In addition, the Board notes that both the 2011 and the 2013 VA medical opinions found the lack of medical evidence for this time period significant, indicating their perception that a chronic headache or migraine disability would have yielded medical evidence at some point during that 50 year time span. The Veteran is competent to describe headache pain and other symptoms within his experience and to express his belief that the ongoing symptoms are similar to those experienced throughout a specific period. However, he has not been shown to have any medical education, training, or experience which would enable him to offer a competent medical diagnosis of his headache pain or an opinion as to any link between his headache pain and his active service. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), noting general competence of lay persons to testify as to symptoms, but not a medical diagnosis and noting by example the competence of lay testimony with regard to a broken leg, but not a form of cancer). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disability is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his personal knowledge. See Jandreau, 492 F.3d at 1377 (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. See Davidson, 581 F.3d at 1316. However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the Veteran's current headache disability is insufficient to support a claim of service connection. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's headache disability are complex medical questions, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disability and active service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such complex medical questions. The Board notes that the Veteran has received treatment for his headache disability through VA and that the listed diagnoses include migraine headaches. However, the Veteran indicated to the VA examiner that this notation was based on the Veteran himself informing the provider that he had migraine headaches. In addition, the provider noted the history provided by the Veteran of onset of headaches in service, but did not offer any specific opinion linking the Veteran's headaches to his active service. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not considered competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, the Veteran's medical treatment records are not sufficient to support a finding that his headache disability is due to his active service. There is no competent medical evidence that associates the Veteran's current headache disability with his active service or with any incident in service or any service-connected disability. Rather, the only medical evidence of record is that of the VA examinations which concluded that the Veteran's headaches are not related to his active service or to his service-connected dysthymic disorder. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the Board finds the aforestated VA examination reports to be probative as they were definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinions are found to carry significant probative weight. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). As the Board may consider only competent independent medical evidence to support its findings as to a question involving a complex medical diagnosis or the question of medical causation, and as there is no favorable, competent medical evidence to support the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a headache disability, to include as secondary to service-connected dysthymic disorder, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs