Citation Nr: 1336030	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  10-40 230	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for migraine headaches.

2.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, anxiety, and a sleep disorder.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel


INTRODUCTION

The Veteran had active honorable service from July 21, 1999, to July 20, 2003.  The Veteran also served on active duty from July 21, 2003 to July 30, 2006; however, this latter period of service is characterized as dishonorable and constitutes a bar to the benefits currently sought.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in May 2013.  A transcript from that hearing has been associated with the claims file.

Subsequent to the hearing, the Veteran submitted additional evidence accompanied by a written waiver of RO initial consideration.  


FINDINGS OF FACT

1.  Migraine headaches did not manifest during a period of creditable active military service, nor are they otherwise shown to be related to such service.  

2.  An acquired psychiatric disability, to include PTSD, depression, anxiety, and a sleep disorder, did not manifest during a period of creditable active military service, nor is it otherwise shown to be related to such service.


CONCLUSIONS OF LAW

1.  Service connection for migraine headaches is not warranted.  38 U.S.C.A. §§ 101, 1110, 5107, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.102, 3.303, 3.304 (2013).

2.  Service connection for an acquired psychiatric disability, to include PTSD, depression, anxiety, and a sleep disorder, is not warranted.  38 U.S.C.A. §§ 101, 1110, 5107, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Duty to Notify

Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the Veteran with proper notice by letter dated in May 2009.  This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  

The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claims, and was not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The claims file contains VA post-service treatment records dated from October 2009 to May 2010.  With respect to the claim for an acquired psychiatric disability, the RO arranged for a VA examination in July 2010.  The examiner considered the relevant history of the Veteran's psychiatric disability, performed a mental status examination, and provided a rationale to support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 12, 123-24 (2007).  The Board finds that the July 2010 examination is adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  With respect to the claim for migraines, the Board notes that the record does not contain any evidence indicating a link between such disability and the Veteran's period of creditable service; thus, an examination is not required.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board notes that the record contains only a few selected service treatment records (STRs); in June 2009, the RO made a formal finding that original STRs were not available to review.  The Board is mindful that, in a case such as this, where some or all of the Veteran's service records are unavailable, VA has a heightened obligation to assist the Veteran in the development of his claims.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).  However, the Board further notes that neither the Veteran nor his representative have asserted that symptoms of the disabilities on appeal began during the period of creditable service.    

All known and available records have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise.  Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters and that no further development of the evidentiary record is necessary.  VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claims at this time.

Analysis

Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  Although the Board has 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).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran claims entitlement to service connection for migraine headaches and an acquired psychiatric disability, which he contends developed in 2005, during and following his tour of duty in Iraq.  See, e.g., STR dated March 17, 2006; VA primary care notes dated October 2, 2009, and March 17, 2010; VA examination dated in July 2010.  The evidence does not show, and the Veteran does not contend, that his headaches and psychiatric disability are related to his period of creditable service.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

However, compensation is not payable unless the period of service on which the claim was made was terminated by discharge or release under conditions other than dishonorable.  38 C.F.R. § 3.12(a).  Notably, the Veteran is shown to have periods of service between July 21, 1999, and July 20, 2003 and between July 21, 2003 and July 30, 2006.  The Veteran's second period of service, which includes his service in Iraq, is shown to be under dishonorable conditions for VA purposes and compensation cannot be paid for any disorder incurred or aggravated during that period of service.  (See April 2009 Administrative Decision.)

The Board has considered whether the Veteran's psychiatric disability is related to a confirmed stressor event, a gunshot wound incurred during training, that occurred in March 2000, during his period of creditable service.  However, the VA examiner concluded, based on examination of the Veteran and the Veteran's self-reported history, that his psychiatric symptoms "are the result of his traumatic combat events he was exposed to while in Iraq."  The Veteran's statements also indicate that his psychiatric symptoms are associated with his service in Iraq in 2004-2005, not the gunshot wound incurred in March 2000.  (See, e.g., personal statement received in July 2013.)  

The preponderance of the evidence of record shows that the Veteran's migraine and acquired psychiatric disabilities are not related to a period of creditable service and, therefore, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As such, service connection is not warranted.


ORDER

Service connection for migraine headaches is denied.

Service connection for an acquired psychiatric disability, to include PTSD, depression, anxiety, and a sleep disorder, is denied.



____________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs