Citation Nr: 1336940	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  98-16 418	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for migraine headaches, including as secondary to a service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma.


REPRESENTATION

Veteran represented by:	Jan Dils, Esq.


WITNESSES AT HEARINGS ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from November 1965 to November 1967.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 1997 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

He and his spouse testified in support of this claim during hearings held at the RO in June 1999, before a local Decision Review Officer (DRO), and in January 2002 before a Veterans Law Judge (VLJ) of the Board.

The VLJ who presided over that January 2002 hearing, often and more commonly referred to as a Travel Board hearing, since has retired from the Board.  The Board thus offered the Veteran an opportunity to testify at another hearing before a different VLJ of the Board who would ultimately decide the appeal.  In February 2012 the Veteran accepted the invitation to have this additional hearing.  The Board therefore remanded his claim in April 2012 to schedule this additional hearing.  Thereafter, however, by letter dated in May 2012, his attorney withdrew the hearing request.  38 C.F.R. § 20.704(e) (2013).

Daniel G. Krasnegor, attorney, previously represented the Veteran in support of this claim.  But in February 2013 the Veteran filed a new VA Form 21-22a (Appointment Of Veterans Service Organization As Claimant's Representative) appointing Jan Dils as his new representative.  Only one organization, representative, agent, or attorney is to be recognized in the prosecution of a particular claim, with a few noted exceptions inapplicable here.  38 C.F.R. § 14.631(e)(1) (2013).  A power of attorney may be revoked at any time and, unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney.  38 C.F.R. § 14.631(f)(1) (2013).  Accordingly, by submitting the February 2013 VA Form 21-22a, the Veteran revoked his prior power of attorney and the Board recognizes Jan Dils as the new representative in this appeal.

There is a lengthy procedural history for this claim that also deserves some mention.  In March 2003, the Board denied the claim, affirming the RO's September 1997 rating decision.  The Veteran then appealed the Board's March 2003 decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In April 2004, based on a Joint Motion for Remand, the Court issued an Order vacating the Board's decision and remanding the claim to the Board for further development and readjudication in compliance with directives specified in the joint motion.

In November 2004, in furtherance of this, the Board in turn remanded the claim to the RO.  In March and April 2005, respectively, the claims file was transferred to the RO in Roanoke, Virginia, then to the RO in Huntington, West Virginia.

In October 2007, the Board again denied this claim.  The Veteran again appealed the Board's decision to the Court and, in June 2008, based on another Joint Motion for Remand filed earlier in that month, the Court issued another Order vacating the Board's decision and remanding the claim for still further development and readjudication.

In April 2009, the Board in turn again remanded the claim to the RO for the additional development.  In December 2009, the Board again denied the claim.  The Veteran again appealed the Board's decision to the Court and, in July 2010, based on another Joint Motion for Remand, the Court again issued an Order vacating the Board's decision and again remanding the claim for still further development and readjudication.

In February 2011, the Board requested a medical expert opinion from a neurologist with the Veterans Health Administration (VHA), and the designee provided this opinion in April 2011.  38 C.F.R. § 20.901(a) (2013).  The RO furnished the Veteran and his attorney a copy of that opinion (including the letter requesting it) pursuant to 38 C.F.R. § 20.903(a) and, in May 2011, the attorney submitted argument in response.

The Board subsequently requested an independent medical expert (IME) opinion from another neurologist in July 2011 and, in August and December 2011, the designee provided an opinion and clarification on that opinion via addendum.  38 C.F.R. § 20.901(d) (2013).  The Board then in July 2011 and January 2012 provided the Veteran and his then attorney copies of the additional opinions pursuant to 38 C.F.R. § 20.903(a).  The attorney submitted additional argument in response to the July 2011 opinion, but claimed that he had not received the December 2011 opinion.  So, in June 2012, the Board followed up by resending a copy of that December 2011 opinion to the Veteran, but apparently not also to the attorney.

Meanwhile, during this notification process, in August 2011, there was a Congressional inquiry filed at the RO, which the RO in turn forwarded to the Board in September 2011.  The Board responded to the inquiry in October 2011.

In July 2012 the Board again denied this claim and, shortly thereafter, a paralegal from the attorney's firm read the decision and realized the firm had not received a copy of the December 2011 IME addendum opinion.  In August 2012, the Veteran's then attorney filed a motion to vacate the Board's July 2012 decision, arguing the Veteran had not been provided sufficient time to respond to the December 2011 IME addendum opinion and that the attorney had not received a copy of it.  In April 2013, in response, the Board vacated its July 2012 decision.  Neither the Veteran nor his attorney since has submitted any additional evidence and/or argument in response to December 2011 IME addendum opinion, so the Board is proceeding with its readjudication of this claim.



FINDING OF FACT

The Veteran's migraine headaches are unrelated to his military service, including especially not caused or worsened by his service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma, but more likely instead the result of trauma sustained since service in a 1985 motor vehicle accident (MVA) - so intercurrent injury.


CONCLUSION OF LAW

His migraine headaches are not the result of disease or injury incurred in or aggravated by his active military service, may not be presumed to have been incurred during his service, and are not proximately due to, the result of, or aggravated by the service-connected hemangioma of his nose, status post lateral rhinotomy and resection of the hemangioma.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt of and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A.  Notice

The VCAA and its implementing regulations provide that, upon receipt of a complete or substantially complete application for benefits, VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013).  See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).

When a claim arises in the context of a Veteran trying to establish his entitlement to service connection for a claimed disability, the VCAA notice must apprise him of all five elements of the claim, which are:  (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; but also regarding the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, the RO should provide the claimant VCAA notice prior to initially adjudicating the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the appellant has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO provided the Veteran this required VCAA notice concerning his claim by way of letters dated in March 2001, May 2004, July 2005 and May 2007.  These letters were not sent in the preferred sequence, having been provided after, rather than before, the initial adjudication of this claim.  But the RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claim in several SSOCs issued after the letters were sent.  Mayfield v. Nicholson, 499 F.3d at 1317.

These letters, especially in combination, satisfy the content requirements of proper notice.  They inform the Veteran of the evidence needed to substantiate his claim and identify the types of evidence that would best do so.  They apprise him of his and VA's respective responsibilities in obtaining this supporting evidence.  They include all necessary information on the downstream elements of disability rating and effective date in the eventuality service connection is granted.  They identify the evidence the RO had requested and/or had received in support of the claim.  They indicate the RO would make reasonable efforts to assist him in obtaining all other outstanding evidence, if relevant to his claim and provided he identified its source(s), but that it ultimate was his responsibility to ensure VA's receipt of all pertinent evidence.

VA provided the Veteran further notice during his June 1999 and January 2002 hearings, and in the remands issued in November 2004 and April 2009.


Regarding the hearings, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ chairing a hearing must satisfy two duties to comply this VA regulation, consisting of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, the then VLJ heard testimony regarding the Veteran's assertion that his headaches result from his service-connected hemangioma of the nose.  Even assuming that VLJ did not satisfy the duties outlined in Bryant, any such error is harmless.  In subsequently issued remands, VLJs fully explained the nature of this claim, identified the evidence that was outstanding and still needed to be obtained to support it - including a nexus opinion linking the migraine headaches to service, or more specifically, to the in-service hemangioma of the nose and/or treatment therefor - and then specifically instructed the RO to obtain it.

The Veteran resultantly has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Neither he nor his attorney asserts that VA failed to comply with the VCAA's notice provisions or the requirements of Bryant.

B.  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion when necessary to decide the claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

The RO in this case satisfied its duty to assist the Veteran in the development of his claim by trying to secure and associate with the claims file all documents identified as being potentially pertinent to this claim, including his service treatment records (STRs), post-service treatment records, whether from VA or private providers, and information from the Social Security Administration (SSA).

The RO also afforded the Veteran VA compensation examinations, during which examiners discussed the etiology of his headaches.  When VA provides a claimant a VA examination or obtains a VA medical opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, the Veteran challenged the adequacy of the examinations.  Pursuant to a July 2010 Joint Motion for Remand and Court Order, the Board then obtained medical opinions from others - notably, a VHA physician and then an IME.  After determining that even the IME's opinion was deficient, the Board then requested further comment, i.e., an addendum opinion, which the IME also provided.

These reports of these examinations and opinions - especially if considered in the aggregate rather than in isolation - provide the information needed to fairly decide this claim, including in terms of addressing the determinative issue of causation.  

The examiners reviewed the claims file, examined the Veteran, if given that opportunity or it was required, and described his disability in sufficient detail enabling the Board to make a fully informed decision on this claim.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one).  See also Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for the opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)).  There are no apparent inconsistencies or ambiguities in the examination reports, at least that remain since correction of prior noted deficiencies by obtaining the supplemental comment, and the claimant and his attorney have not specifically challenged their adequacy or thoroughness, or the competency of the examiner, since the Board obtained the addendum opinion from the IME.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to assist with respect to obtaining an examination and opinion has been met.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4); 3.326(a).  See, too, McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); and Barr, 21 Vet. App. at 312.

Neither the Veteran nor his attorney continues to claim there is any other evidence needing to be obtained in support of this claim or that the opinions, when considered collectively, are inadequate to decide this claim.  Given all of the development that has occurred during the last several years, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  This is especially true when recognizing the number of prior remands.  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially like here, another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran has submitted or that VA has obtained on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

The Veteran is alleging entitlement to service connection for migraine headaches on the basis that the headaches developed during his service, most likely secondary to his service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma.  According to multiple written statements he has submitted since 1997, including in his initial application for compensation for these headaches, and his 1999 and 2002 hearing testimony, he has had headaches continuously since his service.

In one particular statement submitted in support of his claim, he indicated that, during basic training, he was hospitalized for two weeks for a migraine.  In other statements, he indicated that he first noticed migraine headaches during service following his 1967 surgery (once noted as 1966 surgery in Japan) to remove the hemangioma, a tumor, off his forehead (later described as his nose).  Allegedly, since then, his migraine headaches have recurred and become chronic and progressively worse.  He asserts that he received private treatment for migraine headaches from 1994 to 1996 and VA treatment for migraine headaches beginning in 1996.  He additionally points out that he presumptively was exposed to Agent Orange during his service.

During his June 1999 hearing, he clarified that he was treated for pneumonia during basic training, but never for migraines prior to his nasal surgery.  Allegedly, he experienced migraines in service, after his return from overseas, and self treated them for the first few years after his discharge.

In September 1999, during a private outpatient treatment visit, he reported that he had developed migraines following multiple surgeries on his back (1968, 1969 and 1975), two of which had occurred in service.  During another such visit the same month, he reported that he had developed migraines following neck surgery.

According to March 1999, April 1999 and January 2002 lay statements from his friends, which the Veteran submitted in support of this claim, the Veteran has had headaches since service, migraines since he got out of the service in 1967.

Considering these statements, both written and oral, in conjunction with all other pertinent evidence in the claims file and applicable laws and regulations, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for migraine headaches, including as secondary to the service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma.  The evidence establishes this disability is unrelated to the Veteran's military service or service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma, but more likely instead the result of trauma suffered in a 1985 MVA, so intercurrent injury since his service.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection also may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain diseases are considered chronic, per se, including organic diseases of the nervous system, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

In some circumstances, a disease associated with exposure to certain herbicide agents also may be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. 
§ 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  A chronic headache disorder, migraine or any other type, however, is not a disease presumptively associated with herbicide exposure.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). 

Service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a), (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though, as will be explained, not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).

When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  

Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

But not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible).  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  In the third and final step, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  

In certain instances lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).


As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Turning now to the facts and circumstances of this particular case.  Post-service medical documents, including VA and private treatment records and physicians' letters dated since 1985, information from SSA dated since 1999, reports of VA examinations in August 1997, November 2002 and July 2009, an April 2011 VHA opinion and August 2011 and December 2011 IME opinions, the Veteran has chronic migraine headaches.  So resolution of this appeal turns instead on whether this claimed disability is directly related or attributable to his military service, including any alleged Agent Orange exposure, or secondarily related to a service-connected disability, specifically, the hemangioma of his nose, status post lateral rhinotomy and resection of the hemangioma.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Service personnel records (SPRs) confirm the Veteran served in Vietnam during the Vietnam era.  See 38 C.F.R. § 3.2(f).  It is thus presumed he was exposed to Agent Orange while there.  Service connection may not be assigned on a presumptive basis for migraine headaches, however, because, as previously indicated, chronic headaches, including migraines especially, are not listed under 38 C.F.R. § 3.309(e) as being presumptively associated with herbicide exposure.  But see, too, Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (indicating that, even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established alternatively on a direct-incurrence basis by establishing the required causation).  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); and McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange).

As alleged, the Veteran received treatment for headaches (not specifically identified as a particular type) during his service.  According to his STRs, this occurred in January 1966 when he reported a sore throat and headaches.  The evaluating clinician diagnosed an upper respiratory infection (URI) and pneumonia.  Thereafter the Veteran received treatment for frequent unilateral epistaxis (nosebleed) on the left side, later determined to result from a polyp in his right nasal cavity.  This finding, subsequently characterized on biopsy as a non-malignant small mass (hemangioma) in the middle meatus on the left side of the nose, anteriorly, necessitated a 41-day hospitalization from March to April 1967, during which he underwent a lateral rhinotomy and resection of the hemangioma.  There is no indication that, following that surgery, but while still on active duty, he reported or received treatment for headaches of any type.  During his military discharge examination in August 1967, he twice completed a Discharge Report of Medical History denying frequent or severe headaches.  The examiner also noted, objectively, a normal clinical evaluation of the neurologic system.  

Following discharge, the RO service connected the hemangioma of the Veteran's nose, status post left lateral rhinotomy and resection of hemangioma.

There are no treatment records indicating he reported or received treatment for headaches between the time he was discharged from service until 1977, so for a decade after the conclusion of his service.

Beginning in 1978, but before 1985, when he was involved in a MVA, he received treatment for headaches, but none characterized as migraines.  Specifically, in February 1978, he sought treatment for a sinus headache and the evaluating clinician diagnosed acute sinusitis.  In July 1983 the Veteran presented with a sudden onset of nausea, vomiting and dry heaves since early afternoon and the development of a severe headache.  The evaluating clinician diagnosed gastroenteritis.  In October 1984 another evaluating clinician diagnosed sinus headache.  

In July 1985, the Veteran was involved in a MVA (front left fender of his truck was struck by a car, and being unrestrained by a seatbelt he was thrown around the cab, but did not lose consciousness), which caused multiple injuries including to his cervical spine.  Following the accident through 1987, he complained of headaches and those who had occasion to evaluate or treat him often addressed the headaches in conjunction with upper neck discomfort, pain and spasm, nausea and vomiting, describing them as developing in the posterior aspect of the upper neck and scalp with forward radiation bilaterally.  

During this time period, the Veteran reported a history of three laminectomies and intermittent, recurrent cephalgia since the MVA.  Treating clinicians diagnosed cephalgia with intractable pain, including due to an acute cervical strain secondary to trauma, cervical sprain syndrome, early cervical arthrosis at C5-6, degenerative joint disease (DJD), i.e. arthritis at C5-6, status post laminectomies of the lumbar spine, post-traumatic muscle contraction cephalgia, and post-traumatic myofascial pain syndrome - cervical, and somatic dysfunction - occipito-cervical and cervical.  In October 1985, a neurologist characterized the Veteran's headaches as severe since the MVA.  A computed tomography (CT) scan of the brain was negative.

Secondary to that MVA, the Veteran pursued litigation and filed for disability based on the pain he was experiencing and the treatment the pain had necessitated, including therapy and work-ups.

A physician diagnosed the Veteran with migraine headaches in December 1992.  Since then, the Veteran has received regular treatment, including multiple medications and injections, for headaches, most often characterized as migraines, occasionally characterized as vascular and mixed type.  Clinicians have indicated the headaches are chronic in nature.  In 1995 the Veteran reported a family history of migraines and no known precipitating factor for them.

Effective January 1999, SSA awarded him disability benefits due to severe impairment caused by chronic low back pain, migraine headaches, depression and anxiety.

Several clinicians have addressed the etiology of his migraine headaches.  Specifically, upon a review of the Veteran's records in February 1986, less than a year after the MVA, a private physician indicated the Veteran suffered from chronic strain pattern, chronic somatic dysfunction, headaches, functional myositis, fibromyositis and fibromyalgia, all of which were related to the MVA.

In a May 1986 letter to the Veteran's personal injury attorney, a private neurologist, J. L., MD, wrote that he had examined the Veteran and had reviewed his medical documents, including records from an October 1985 Sun Coast Hospital admission.  He observed the Veteran had reported having headaches and neck pain since his 1985 MVA and also had frequent nausea and intermittent vomiting.  He specifically had denied any prior automobile accident and past migraine history.  He reported a prior work injury in 1968 leading to laminectomies in 1968, 1969 and 1976.  Dr. L. conducted a thorough neurological evaluation, noted the Veteran had sustained a cervical strain, and concluded his headaches were partly related to the cervical strain and partly related to stress and anxiety.  He said it would be difficult to give the Veteran a disability rating at that point because of the "rather short duration of the problem, less than one year...."  So that doctor dated the onset of the problem back to the prior year, 1985, when the Veteran had the MVA.  The Veteran underwent that neurological evaluation in support of a lawsuit he had filed against the other driver involved in the July 1985 MVA.  In his claim, he had asserted that he had permanent disability from that accident.

During an August 1997 VA general examination, an examiner opined the Veteran had severe migraine headaches that had been present since the removal of a hemangioma of the nose in 1966.  In so opining, the examiner contemplated the Veteran's reported history of chronic migraine headaches and neck pain since 1966 nose surgery. 

In March 1999, in support of a claim for SSA benefits, the Veteran submitted a statement from a VA physician, Dr. F., reflecting an opinion that, due to the Veteran's lack of headaches prior to his in-service sinus surgery and their onset subsequent to the surgery, it is likely that the sinus manipulation he endured may have been in some way a cause of his current migraines. 

In May 1999, Dr. W. submitted a statement indicating that he first treated the Veteran in 1981.  He summarized the Veteran's reported history of having had migraines since sinus surgery.  

In September 1999, S. K., MD, noted that the Veteran suffered from migraines, which he developed following surgery on his neck.  Dr. K based this opinion on the Veteran's reported history of having had a back injury after a fall, later rupturing a disc in his neck, and then undergoing surgery on his back three times, in 1968, 1969, and 1975. 

In November 2002, based on a VA examination, an examiner provided an unfavorable opinion.  He determined that the Veteran's migraine headaches were not related to or likely caused by the in-service hemangioma resection.  The examiner based this opinion on a finding that a resection of a nasal hemangioma would not involve the brain.  The examiner considered the Veteran's reported history of headaches since 1967 and description of the headaches as localized to the temple and forehead and necessitating the use of Zomig, Phenergan and Atenolol.   

In July 2009, based on a VA examination, an examiner provided an unfavorable opinion.  On that date, the Veteran indicated that, while he was in the service in the 1960s, he had a surgical procedure in which a benign neoplasm was removed from his nose.  Allegedly doctors told him that if he left it there, it would continue to grow.  He claimed that he had been having migraine headaches for 40 years, 15 per month, and that there was a linkage between these headaches and the in-service surgery. 

The examiner reviewed a May 2006 CT scan, which showed intact sinuses and septum and no evidence of a surgical defect or deformity within the nose or sinuses. He also conducted a physical examination, which showed a clear septum, but slight collapse around the septum anteriorly and slight displacement of the septum.  

He noted that migraine headaches can be found in the general population and typically episodic headaches that exacerbate into migraines are more related to exposure to chemicals or certain food products and not related to a surgery.  The examiner further explained that headaches or pain localized to the area of surgery that is fairly constant in intensity would be more typical of the type of headache that one would expect, not a migraine level.  He pointed out that the Veteran had no neurologic deficits on the current examination.  His impression was that it was not likely that there was a direct linkage between migraine headaches and the Veteran's in-service surgical procedure that was done in the 1960s and much less likely than 50 percent in terms of probability of a linkage.  The examiner acknowledged earlier documentation providing a link, but based his opinion on his ENT (ear, nose and throat) surgical experience of over 15 years.  He indicated that he had not seen any nasal procedures that had been done to this degree, which stimulated migraine headaches. 

In April 2011, a VA neurologist provided an unfavorable VHA opinion based on a review of the Veteran's claims file.  He noted that immediately following the Veteran's surgery in 1967 there were no statements reflecting headache complaints.  The surgery was done in March 1967, and resulted in no complications with a hospital discharge in April 1967.  On separation medical history in August 1967, the Veteran stated that he did not have frequent or severe headaches.  He reported that he had a nose operation, but did not comment about complications.  He characterized his present state of health as good.  

The VA neurologist indicated that the next relevant medical records are dated in the mid 1980s by different healthcare providers all citing the occurrence of severe headaches and neck pain in conjunction with a June 9, 1985 MVA. An emergency room visit and subsequent admission to Suncoast Hospital in October 1985 reflect that the headache had been occurring for three months following this MVA.  An October 1985 neurological consultation by Dr. F. also reports "severe headaches and neck pain which began following an automobile accident about 4 weeks ago." In another report dated May 21, 1986, Dr. L., a neurologist, stated that "he has basically had headaches and neck pain since that time" (referring to the June 9, 1985 accident).  In the same report it was also specifically stated that the Veteran did not have any prior migraine history.  The first time the Veteran claimed that the headaches dated back to the 1960s is in the mid 1990s, when he first started to seek VA disability for potential Agent Orange exposure and the in-service hemangioma resection.  The VHA expert concluded as follows: 

It is my opinion that the patient's migraine headaches are highly unlikely related to the patient's surgery in 1967. The most credible evidence for the onset of his headaches involves medical records prior to his seeking VA disability in the 1990s. In all these relevant records there is no history suggesting migraine headache prior to his motor vehicle accident in 1985. It is highly unlikely that any trauma suffered as a consequence of surgery in 1967 would take 18 years to manifest itself as a risk factor for the patient's migraine headaches starting in 1985. In addition, in 30 years of neurological practice, I have never seen migraine headaches occur as a result of nasal surgery.


In an August 2011 IME opinion, a neurologist, M. F., MD, from the UMass Memorial Medical Group provided another unfavorable opinion.  He indicated that he had reviewed the Veteran's records.  He summarized pertinent records and provided the following medical opinion:

My conclusions regarding the appellant are that he does appear to have migraine headaches and that it [is] highly likely that they began after his motor vehicle accident in 1985. A [sic] base this conclusion about the onset of his migraines upon the extensive documentation provided by Dr. Leavengood and Dr. Hatch both of whom evaluated him for headaches and neck pain and in neither note is there any mention of a headache history prior to 1985. The appellant claims that the migraines began shortly after his surgery for the nasal hemangioma but there is no objective documentation to support this claim. It is therefore highly unlikely that the development of his migraines many years after the nasal surgery were causally related to their development. Additionally, I am not aware of any obvious relationship between the removal of a nasal hemangioma and the subsequent development of migraine headaches. This lack of a medically confirmed cause and effect relationship also strongly argues against the nasal hemangioma removal and the development of migraines many years later. The appellant stated in his 10/29/1997 that he had migraines for 30 years so this is discrepant to the history provided in 1986. It is entirely unclear why he did not offer this history to Drs. Leavengood and Hatch at that point. In the letter provided by Dr. Frenzel dated March 31, 1999 it states that the appellant had been suffering from migraines since serving in the military, again discrepant to the history provided in 1986. Similarly, the VA note from July 2005 says he has been suffering from migraines since his military service. My conclusions are that the appellant has migraine headaches and that the[y] likely began in 1985 and that the nasal surgery for the removal of the hemangioma in 1967 is not causally related to the migraines. I reached these conclusions because there is no established relationship between nasal surgery and the development of migraine headaches and it is highly likely that the appellant's migraines are related to trauma suffered in a motor vehicle accident in 1985.

In a December 2011 IME addendum opinion, provided after summarizing relevant medical records, Dr. F. stated the following:

My conclusion remains that the migraines did not begin while he was on active duty. If he were having migraines he would have mentioned them to the doctors he saw in 1986. Neither of them mentions a migraine history and neither included this diagnosis in their notes. They were specifically evaluating him for headaches and a history of migraines for 20 years would have been very pertinent to their evaluation and treatment of the headache problem that began after the motor vehicle accident in 1985. Notes mentioning that the migraines began while on active duty after the hemangioma removal are difficult to interpret because they were made when he was trying to obtain financial compensation for the migraines as being service connected. In my opinion, the medical records from the 1980s take precedence as there were no financial claims at that point. Concerning the issue of the hemangioma removal and the development of migraines, there is no medical evidence to support this potential relationship as being cause and effect. My conclusions are that the appellant did not begin to suffer from migraines while on active duty and that the hemangioma removal while on active duty was not related to the development of migraines many years later.

The Board must assess the credibility and weight to be attached to a medical opinion.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Provided an opinion includes adequate statements of reasons or bases, the Board may favor one over another.  Wray v. Brown, 7 Vet. App. 488 (1995).  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  

Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  A medical opinion based on an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993). 

The opinions rendered in February 1986 and May 1986 are unfavorable, relating the Veteran's headaches primarily to his 1985 MVA and residual cervical injuries.  They are not probative on the matter of whether his current migraine headache condition, which was just beginning to develop at the time the opinions were rendered, is related to his active military service.  They do not contemplate pertinent clinical evidence of record, including STRs showing an episodic headache and nasal surgery in service.  As well, having been provided decades ago, the opinions do not contemplate how the Veteran's previously episodic headaches subsequently developed into a chronic migraine headache condition.  

Although some, such as the VA examiner in August 1997, Dr. F. in March 1999, and Dr. W. in May 1999, provided favorable nexus opinions relating the Veteran's current migraines to his surgery in service, the Board accords their opinions little probative value.  First, the VA examiner's opinion is not supported by rationale.  Generally, the degree of probative value that 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, though the latter, alone, is not determinative or dispositive of the opinion's probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant, and indeed what is most 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 had 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).

Second, the opinions appear to be based primarily on the Veteran's reported history, which, for reasons that will be discussed, has questionable credibility.  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.  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).  In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.

In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009), the Court discussed in great detail how to assess the probative weight of medical opinions and the value of reviewing the claims folder.  The Court held that a claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for private medical opinions.  The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." 

Third, the opinions also are based on an inaccurate factual premise, that being that the Veteran underwent sinus surgery in service.  The Veteran underwent no such surgery during his service.  Rather, he underwent nasal surgery, not involving the sinuses, a fact recent testing, including a CT scan, confirms by revealing intact sinuses.  Reonal v. Brown, 5 Vet. App. at 461.  In addition, although Dr. W. stated in May 1999 that he had first treated the Veteran in 1981, he did not indicate that the purpose of such visit or any other prior to the MVA was to treat headaches.

The remainder of the opinions, unfortunately all unfavorable, are more probative, provided by qualified clinicians, based on an accurate review of the clinical evidence in the claims file, including all STRs, and the Veteran's various statements, and supported by well-reasoned rationale.

The Veteran's assertions relating his migraine headaches to his active service, or more specifically the in-service hemangioma of the nose and nasal surgery, or establishing continuity of headaches since service, are thus the only evidence of record tending to establish the required causal link of this service-connection claim.  Although he is competent to describe when he began experiencing pain in his head as pain is a lay-observable symptom, lacking medical expertise, he is not competent to address when his episodic headaches developed into a chronic migraine headache condition.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377.

Even assuming he were competent to do so, the Board would find his statements in this regard not credible.  The claims file clearly establishes that, throughout the years, depending on the type of benefit being sought, he altered his medical history to aid in obtaining such benefit.  After his July 1985 MVA, he pursued litigation, claiming permanent disability, including headaches, secondary to the MVA, not instead because of his military service.  He frequently related his headaches to that intervening MVA and never once mentioned a migraine headache history dating back to his service.  This is so even though, prior to the MVA, he had had episodic headaches, albeit not migraine type, for which he had received treatment.  Surely he would have reported a migraine history for treatment purposes had there in fact been one.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a Veteran, long after the fact).  And to reiterate, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  This is especially true when considering that many of those prior examinations or evaluations occurred well before he filed his VA claim, when there was no incentive to fabricate information for personal gain, financial or otherwise, except, as an example, in relation to his claim that arose out of that MVA.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).

He then filed a claim for VA compensation in 1997 and, thereafter, made no mention of the 1985 MVA.  So at times he has only dated his migraines back to that MVA and at others has alleged they have a much longer history, dating back to his military service and nasal surgery.  Even in doing this, he sometimes has clouded his medical history even further, occasionally relating the headaches to his nasal surgery, surgery on his sinuses, surgery on his forehead or back surgery.  One thing is for certain; he has been very inconsistent in reporting his relevant history, thereby leading the Board to question his credibility.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.).

There is no doubting that at times he had a headache in service and on occasions also has since, beginning in the 1970s; however, these headaches were episodic, including secondary to infections, never diagnosed as migraines or characterized as chronic (meaning necessarily permanent).  Following the July 1985 MVA, he developed a chronic headache condition, which clinicians eventually (in 1992) characterized as migraine in type.  According to the most probative competent and credible evidence of record, these migraine headaches are unrelated to his service, including his in-service hemangioma of the nose, nasal surgery and presumed Agent Orange exposure, but instead more likely related to his July 1985 MVA.  

They did not initially manifest within a year of his discharge from service, certainly not to the required minimum compensable degree of at least 10-percent disabling, or, as alleged, continuously manifest since his service.

Based on these findings, the Board concludes that his migraine headaches were not incurred during his service, may not be presumed to have been, and are not proximately due to, the result of, or aggravated by a service-connected disability.  The preponderance of the evidence is against this claim.  Thus, there is no reasonable doubt to be applied in resolving this claim.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

The claim of entitlement to service connection for migraine headaches, including as secondary to a service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma, is denied.



___________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs