Citation Nr: 1337584 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-06 869 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which denied entitlement to service connection for depression, hives, migraine headaches and PTSD. The matter was later transferred to the jurisdiction of the Indianapolis, Indiana, RO. In its February 2012 decision and remand, the Board noted that the United States Court of Appeals for Veterans Claims (Court) held that, although an appellant's claim identified PTSD without more, a claim could not be limited only to that diagnosis, but must be considered a claim for any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that an appellant does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes. Clemons v. Shinseki, 23 Vet. App. 1 (2009). For this reason, the Board characterized the issues of entitlement to service connection for depression and PTSD as any acquired psychiatric disability, including PTSD and depression. The Board denied entitlement to service connection for hives, and remanded the remaining claims for additional development. In an October 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for recurrent major depressive disorder, effective August 4, 2006. As this is a full grant of the benefit on appeal, this issue is no longer before the Board. However, because the Veteran's claim was also one for PTSD, the Board will address this disability in the decision below. FINDINGS OF FACT 1. The Veteran does not have migraines that are attributable to military service. 2. The Veteran does not experience PTSD. CONCLUSIONS OF LAW 1. The Veteran does not have migraines that are the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2013). 2. The Veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The United States Court of Appeals for Veterans Claims (Court) has held that the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in August 2006, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to substantiate a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. With regard specifically to the Veteran's claim for entitlement to service connection for PTSD, the Board notes that, as the regulations changed during the appeal period for the basis upon which service connection can be granted for PTSD, the Veteran was provided with another notification in February 2012. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, any timing error with regard to this notification was cured by the issuance of an October 2012 supplemental statement of the case. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (a party alleging defective notice has the burden of showing how the defective notice was harmful). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in February 2012 in order to provide the Veteran with notification of the current regulations governing service connection claims for PTSD, as noted above, to obtain updated VA medical records, and to provide the Veteran with VA examinations to determine whether he has migraine headaches and any psychiatric disorders related to military service. The records have been obtained and added to the Virtual VA claims file, and the Veteran was provided with VA examinations in March and April 2012. The Board finds that these VA examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See 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"). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Migraines The Veteran contends that he has migraine headaches as a result of a head injury sustained on active duty in February 1971, when he fell out of his upper bunk and hit his head on the floor. He has reported that he was unconscious for about 10 minutes. Service treatment records reflect the Veteran's reports in October 1970 that he did not have any frequent or severe headaches. His records reflect treatment after his fall in February 1971, and show that he complained of tinnitus, but did not report any headaches. An August 1971 service treatment record shows that the Veteran was seen for ongoing tinnitus since the fall, but the examiner specifically noted that the Veteran did not complain of headaches. At the time of his separation from active duty, the Veteran had a normal examination and indicated on his separation Report of Medical History that he did not have any frequent or severe headaches. VA medical records from June 2003 through December 2003 do not reflect any reports of headaches or migraines. In March 2005, the Veteran reported that he had a constant headache that had been present for a month. In May 2005, a VA examiner noted that the Veteran had been last seen by the oncology clinic on January 10, 2005, and that, since then, he reported only some new headaches. In June 2005, the Veteran reported that his headaches had started three to four months earlier. January 2006 medical records show that the impression was migraines without aura. A September 2006 report from the Indiana Disability Determination Services, associated with the Veteran's Social Security Administration (SSA) records, shows that the Veteran reported that his migraines began after his treatment for cancer three years before, and that he did not have headaches prior to that time. The Veteran was afforded a VA examination in March 2012, in order to determine whether he had migraine headaches that were related to military service. The examiner opined that the Veteran's migraines were less likely than not related to the Veteran's service. The examiner provided an explanation that the onset for the headaches was documented in VA medical records without any precipitating event in approximately February 2005, 34 years after the traumatic brain injury (TBI) and approximately three years after the Veteran stopped drinking. The examiner noted that the natural history in the vast majority of post-concussive headaches is for resolution over a relatively short period of time, and that it would not be expected that there would be a delay of onset for 34 years. With regard to the Veteran's claim that the drinking had masked his symptoms, the examiner noted that, had that been the case, it would have been expected that he show symptoms of headache several years earlier than he did. The examiner found no other possible precipitating event in the claims file. A May 2012 neuropsychological evaluation reflects the Veteran's reports that his headaches worsened after he stopped drinking and then again after his treatment for cancer in 2003. The Veteran reported to this examiner that he stopped drinking in the late 1980's. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The medical evidence of record clearly shows that the Veteran has a current diagnosis of migraine headaches, meeting one of the requirements of service connection. Brammer, supra. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, relates current headaches to his military service, including to a head injury sustained in a fall from a bunk bed in service. The Veteran has not made any contentions in the record that he has had ongoing migraines since his in-service injury. Instead, he has reported that they began after he stopped drinking alcohol in the late 1980s, and that they began after his cancer treatment in 2003. VA medical records reflect his first report of an ongoing headache was in March 2005. Nevertheless, the medical evidence of record, along with the Veteran's statements, reflect that the Veteran did not begin to have migraine headaches until many years after service. The Veteran has attributed his migraines to his in-service head injury. With regard to the Veteran's contentions that his migraines are related to his in-service head injury, the Board observes that while lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, the Board finds that the question regarding the potential relationship between his head injury in service and his current migraines to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). As such, while the Veteran's statements that he has ongoing headaches are competent, his contentions that his current migraines are caused by his remote, in-service migraines are not. In terms of evidence providing an etiology between the Veteran's current headaches and his time on active duty, the Board notes that there is no competent medical evidence which provides such a link. Boyer, supra. The examiner who provided the March 2012 VA examination report opined that the Veteran's migraines were not related to his fall in service, as typical post-concussion headaches would not have a delayed onset of many years. This examination report contained clear conclusions with supporting data, and a reasoned medical explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, this medical opinion has great weight against the Veteran's claim that his migraines are etiologically related to his active duty. Even the Veteran has conceded that his headaches were not noticed until many years after service. The examiner has explained the unlikely chance that they would be related to service and has explained that the Veteran's theory that drinking had masked his symptoms was also unlikely. This opinion is not contradicted by other competent evidence of record. As the preponderance of evidence is against the claim, entitlement to service connection cannot be granted. 38 U.S.C.A. § 5107. PTSD Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f) (2013). Unless it is determined that a veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's alleged stressor(s) generally must be established by official service records or other credible supporting evidence. Cohen, supra; Doran v. Brown, 6 Vet. App. 283 (1994); 38 C.F.R. § 3.304(f). However, if the claimed non-combat stressor is related to the veteran's 'fear of hostile military or terrorist activity' and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 C.F.R. § 3.304(f)(3). The Veteran has contended that he has PTSD that is a result of in-service stressors. The Board notes that the Veteran is separately service connected for major depressive disorder as related to service. In pursuing his claim for entitlement to service connection for PTSD, the Veteran has submitted stressor statements regarding incidents in service that he asserts caused him to develop PTSD. These included personal problems with alcohol, a confrontation with a superior trying to get into the dormitory he was guarding, and his fall from the bunk bed, as noted above. VA medical records show that the Veteran had a positive PTSD screen in December 2006; however, the medical evidence of record does not reflect that the Veteran has a diagnosis of PTSD that meets the DSM-IV criteria. At a January 2007 VA PTSD examination, the Veteran reported as a stressor the incident of his in-service fall from his bunk bed, noting that he felt that someone may have pushed him off the bed, since he refused to use drugs with his roommates. However, the VA examiner found that the Veteran's symptoms did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner noted that he did not re-experience the traumatic event, and that the event caused no clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found that, while the Veteran filed a claim for entitlement to service connection for PTSD, it appeared that he understood very little about this as a diagnosis, and mostly seemed interested in reporting a pattern of depression and social detachment. At his April 2012 VA examination, the Veteran reported two stressor events. Specifically, the Veteran reported that he was leaving a bar in Saigon, when AK 47 rounds began hitting the pavement and "buzzed by his head." He moved closer to a building to seek shelter, and felt paralyzed, as if time had stopped. He noted that he felt very frightened during this incident, and shaky afterward. The examiner found that this met the criterion A for PTSD, and was related to the Veteran's fear of hostile military or terrorist activity. The second stressor related by the Veteran was his fall from the bunk bed in service. The examiner did not find that this met criterion A for a stressor event, as the Veteran was drinking when this event occurred, and did not remember feeling fear or terror at the time. The examiner also noted that this event was not related to the Veteran's fear of hostile military or terrorist activity. Upon examination, the examiner found that the Veteran did not meet criterion B for a diagnosis of PTSD, which refers to persistently re-experiencing the traumatic event. The examiner noted that the Veteran had endorsed some symptoms of PTSD, but that he was clearly "subthreshold" for a PTSD diagnosis. Instead, the examiner opined that his difficulties functioning were more tied to his depression. A private May 2012 neuropsychological evaluation reflects that the Veteran had a diagnosis of major depressive disorder. Ongoing VA treatment records also reflect an ongoing diagnosis of major depressive disorder. After a thorough review of the record, the Board finds that there is no competent medical evidence in the record that supports a finding that the Veteran has a diagnosis of PTSD. Without a diagnosis of PTSD, service connection cannot be granted for this disorder. Brammer, supra. Although there has been some suggestion of PTSD by care providers, when a careful analysis was undertaken by an examiner as to the specific diagnostic criteria, PTSD was not diagnosed. The Board gives greater weight to the examination where each criterion was analyzed. As the preponderance of evidence is against the claim, entitlement to service connection cannot be granted. 38 U.S.C.A. § 5107. ORDER Service connection for migraine headaches is denied. Service connection for PTSD is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs