Citation Nr: 1335663 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-24 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for headaches, to include an undiagnosed illness manifested by headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to August 1995, and from August 1999 to December 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for headaches. The Veteran had a Travel Board hearing in August 2011 before the undersigned Acting Veterans Law Judge (AVLJ). In April 2012, and again in June 2013, the Board remanded the case, to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. At this time the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's current chronic headaches have been clinically diagnosed as tension and migraine headaches. 2. The Veteran did not have chronic tension and migraine headaches during active service. 3. Chronic tension and migraine headaches manifested more than a year after the Veteran's separation from active service. CONCLUSION OF LAW Chronic tension and migraine headaches are attributable to clinically diagnosed disorders, were not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The RO provide the Veteran with VCAA notice in letters issued in December 2008, June 2009, and October 2009. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection and increased disability ratings. The RO informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. In the August 2011 Travel Board hearing, the undersigned AVLJ fully explained the issues. The Veteran, through his representative, stated that in 2010 a physician who treated him at an Army medical facility wrote a report potentially relevant to his some of his service connection claims, including the headaches claim. The RO attempted to obtain a copy of the report, but the report was not available. In the April 2012 Board remand, the AVLJ advised the Veteran that it would be to his benefit to submit a statement from that physician. The AVLJ thus suggested the submission of evidence that was not in the file but potentially was relevant. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Veteran's claim file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, statements from the Veteran, and a transcript of the August 2011 Travel Board hearing. The Veteran has had examinations that adequately address his headaches service connection claim. In response to the Board's remand instructions, a new examination was performed, and the examiner addressed the questions posed in the remand. The Board is satisfied that there has been substantial compliance with the remand directives. Therefore no additional remand is needed, and the Board may proceed with review of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of his claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Headaches The Veteran contends that he has chronic headaches that began during or are otherwise attributable to his service. His claim includes a claim for service connection for the headaches as an undiagnosed illness in a veteran with Persian Gulf War service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also 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). Service connection for certain specifically listed chronic diseases, including organic diseases of the nervous system, such as migraine headaches, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative means of establishing service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nonetheless, service connection also 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). Service connection may also be established for a Persian Gulf veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or mote not later than December 31, 2016. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Board notes that the Veteran is shown to have qualifying service as a Persian Gulf War Veteran. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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. With regard to service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, based on Persian Gulf War service, a "qualifying chronic disability" includes: (A) an undiagnosed illness, or (B) a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disease). 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). On VA medical examination in July 2012, the examiner found that the Veteran has migraine headaches. Migraine headaches are a diagnosis. As the Veteran's headaches are manifestations of a diagnosis, they are not part of an undiagnosed illness. In addition, no clinician has found that the Veteran's migraine headaches are part of a medically unexplained chronic multisymptom illness. The Veteran's migraine headaches, then, are not subject to service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 based on his Persian Gulf War service. Nonetheless, service connection may be considered on a direct basis, based on incurrence or aggravation in service. The evidence relevant to direct service connection includes the Veteran's service medical records. In a June 1988 medical history the Veteran checked no for any history of frequent or severe headaches. In a June 1988 medical examination the examiner checked normal for the condition of the Veteran's head and his neurological condition. In a May 1995 medical examination the examiner checked normal for the condition of the Veteran's head and his neurological condition. In a September 1997 medical history the Veteran checked no for any history of frequent or severe headaches. In June 1998 the Veteran was seen for sinus headaches and right ear earache. The treating clinician's impression was upper respiratory infection. In a June 1999 medical history, the Veteran reported a history of head injury with laceration of the frontal area of the scalp. He checked no for history of frequent or severe headache. On a June 1999 examination, the examiner checked normal for the condition of the Veteran's head and his neurological condition. In April 2001, the Veteran sought treatment for a one day history of sore throat, headache, and fever. He indicated that he had a constantly throbbing headache. The treating clinician's impression was exudative pharyngitis. In an August 2004 medical history, the Veteran checked no for history of frequent or severe headache. In November 2004, the Veteran submitted a claim for service connection and disability compensation for several disorders. The disorders listed include "head trauma (scar)," reported as treated from 1996 to 2004. On VA examination in November 2004, the Veteran did not report a history of headaches. The examiner noted a healed scar over the forehead. No neurological abnormality was found. The Veteran's claims file contains records of post-service VA and private medical treatment from 2007 forward. In June 2007, the Veteran reported a history of head injury, without loss of consciousness, in 1996. He indicated that the injury occurred when he hit a glass door. He stated that he had occasional headaches in the frontal region if he did not sleep. In August 2007, the Veteran had private treatment for kidney stones. At the time of that treatment he had no headache. In VA treatment in January 2008, the Veteran reported having frequent headaches in the frontal area, between his eyebrows. He stated that he had experienced such headaches since he was in service, and that they had become more frequent in recent weeks. He reported that in recent weeks he had also experienced headaches in the occipital area, sometimes associated with nausea and photophobia. The treating clinician's impression was migraine and tension headaches. In May 2008, the Veteran had CT of the brain, due to chronic headaches. The findings on that imaging were unremarkable. In VA treatment in August 2008, the Veteran reported having intermittent headaches. He indicated that headaches occurred about every three weeks. In September 2008, he had a neurological consultation to address episodes of upper extremity tremors and generalized weakness. At that time he also reported a history of headaches. Neurological examination was normal. An EEG was normal. The examiner stated that the etiology of the episodes of tremors and weakness was uncertain. In February 2009, a VA physician who provided the Veteran primary care wrote that his disorders included chronic headaches. In May 2009, the Veteran submitted a claim for service connection for headaches. In VA treatment in May 2009, the Veteran indicated that he had chronic headaches. In June 2009, he had a VA neurology consultation for daily headaches over the past year. He stated that the headaches were severe enough that he needed to lie down. The neurologist's impression was chronic daily headaches with migrainous and muscle contraction features. In June 2009, and again in July 2009, the Veteran received private treatment for a kidney stone. Medical history noted at that time included headaches and migraine headaches. In VA treatment in July 2009, the Veteran sought treatment for persistent daily headaches. Ongoing treatment for persistent headaches was noted in subsequent treatment notes dated in 2009 through 2011. In a July 2009 statement, the Veteran asserted that because of headaches and other disorders he had to quit jobs. In a September 2009 statement, the Veteran wrote that he had constant medical problems including headaches. On VA examination in September 2009, the examiner reported having reviewed the Veteran's claims file. The Veteran reported having daily headaches. The examiner noted that the Veteran had been diagnosed with chronic daily headaches with migrainous and muscle contraction features. On VA examination in May 2010, the examiner reported having reviewed the Veteran's claims file. The Veteran reported having had headaches since 2003. He related a one year history of daily headaches. The examiner observed a pale, nontender scar on the Veteran's forehead. Neurological examination was normal, and behavior was normal. The examiner concluded that headaches due to Gulf War service were not found. In the August 2011 Travel Board hearing, the Veteran indicated that he experienced headaches during service. He stated that he received treatment during service for disorders including ankle injury, but that some problems he reported in service were treated as malingering. He related that, after his 1999 to 2004 period of active service, he did not seek VA medical treatment until about 2008. He reported that from 2004 until 2008 he addressed headaches with nonprescription medication. He stated that presently he had headaches daily, and sometimes had more severe headaches that confined him to bed. On VA examination in 2012, the examiner reported having reviewed the Veteran's claims file. The examiner noted that in neurology treatment in 2009 the Veteran reported having had headaches daily over the preceding year. The Veteran indicated that he took acetaminophen for most headaches. He stated that twice monthly he got more severe headaches that he treated with sumatriptan. The Veteran indicated that headaches were accompanied by nausea and sensitivity to light. The examiner stated that the Veteran had daily mild headaches and twice monthly migraine headaches. The examiner provided the opinion that it is less likely than not that the Veteran's headaches were caused by service. The examiner did not explain reasons or bases for that opinion. In the June 2013 remand, the Board instructed that the Veteran was to have a VA neurological examination, with file review, to obtain an opinion as to the likelihood that the Veteran's migraine headaches had their onset during active service or within a year thereafter, or are otherwise related to active service. The Board indicated that the examiner should explain the reasons for the opinions. The Veteran had a VA brain and spinal cord examination in June 2013. The examining physician reported having reviewed the Veteran's claims file. The examiner indicated that the Veteran had a diagnosis of migraine headaches. In an August 2013 addendum to the examination report, the examiner noted medical records from the Veteran's later period of active service, in which the Veteran indicated that he did not have any history of frequent or severe headaches. The examiner noted that records of VA treatment in 2013 indicated that the Veteran had migraine headaches, but did not indicate when he began to have migraines. The examiner found that medical records did not link the Veteran's migraine headaches to his service. The examiner concluded that the Veteran's migraine headaches could not be associated with his service without resorting to speculation. The evidence does not suggest that the Veteran's migraine headaches manifested to a degree of 10 percent disabling or more within one year from his separation from his later period of service. The history of his migraine headaches therefore does not warrant a presumption of service connection under 38 U.S.C.A. § 1112. The Veteran has frequent headaches and recurrent migraine headaches. Service connection depends on incurrence or aggravation during service of a headache disorder. During the Veteran's periods of active service, he did not report having frequent or severe headaches. In fact, when he completed medical history reports, he indicated that he did not have such history. Beginning in 2008, a few years his later service period, the Veteran stated that during service he experienced headaches like his current headaches. The Veteran's statements during service, that he had not had frequent or recurrent headaches, recounted current and recent events. Those statement therefore are more reliable evidence about the service period than his later statements, that headaches such as those reported from 2008 forward also occurred during service. As the Veteran's contemporaneous statements are more convincing than his retrospective statements, the greater weight of the evidence indicates that the Veteran did not have a chronic or recurrent headache disorder during service. The Board therefore denies service connection on a direct basis for the current tension and migraine headaches. ORDER Service connection for a chronic tension and migraine headaches is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs