Citation Nr: 1340080 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-01 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for headaches, including as a manifestation of a psychiatric disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from April 1951 to January 1952 and then with the United States Air Force from February 1953 to August 1959. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2012 and May 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Headaches, including as a manifestation of a psychiatric disability, clearly and unmistakably preexisted service and clearly and unmistakably were not aggravated by service. CONCLUSION OF LAW The criteria for service connection for headaches, including as a manifestation of a psychiatric disability, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in September 2012 and May 2013. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of both the September 2012 and May 2013 remands was to identify and obtain outstanding VA and private treatment records and to obtain a VA opinion with regard to the Veteran's headaches in relation to an acquired psychiatric disorder. A review of the post-remand record shows that the VA treatment notes through September 2013 were added to the claims file, a VA opinion was received in November 2012, and another VA examination was performed in October 2013. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the prior remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in October 2008, prior to the initial unfavorable AOJ decision issued in January 2009. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and of his and VA's obligations in providing such evidence for consideration. This letter also advised him of the evidence required to substantiate disability ratings and effective dates. Therefore, the Board finds that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA and private treatment records, the reports of December 2009, March 2012, and October 2013 VA examinations, and a November 2012 VA opinion were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. The Board notes that the only service treatment records of record are parts of the Veteran's enlistment and separation examinations, immunization records, and the report of a July 1959 Medical Evaluation Board (MEB). The National Personnel Records Center indicated that it had provided all records currently in its possession with other service treatment records having been transferred to the RO in 1959. In cases where VA is unable to obtain some or all of the Veteran's service treatment records, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). All procedures to obtain any potentially missing service treatment records were correctly followed. And since all efforts have been exhausted, further attempts would be futile, so there is no basis for any further pursuit of his service treatment records. 38 C.F.R. § 3.159(c)(2) and (3). With regard to the VA examinations and opinions, the Board notes that once VA undertakes to provide a VA examination or opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and history, and evaluated the Veteran. The Board notes that the December 2009 VA examiner also provided the November 2012 VA opinion. Each examiner provided an opinion as to diagnosis and etiology that was supported by a rationale based on all the available evidence. There is nothing to suggest that any opinion is not sufficiently grounded in the facts of the case or that any examiner reached an arbitrary conclusion. The Board notes that in November 2012, the examiner deferred the questions of an acquired psychiatric disorder to a psychiatrist, as the examiner was unable to formulate an opinion on those questions. The psychiatrist's opinion was received in October 2013. For these reasons, the Board finds the various examination reports and opinions adequate as a whole for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are considered as 'noted.' 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is 'noted' at entrance into service, supporting evidence is needed beyond the Veteran's report of history. Crowe v. Brown, 7 Vet. App. 238 (1994). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Board notes that the Court has held that the presumption of aggravation under 38 U.S.C.A. § 1153 only applies in cases where a preexisting disability was noted at the service entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Otherwise, the matter goes to the analysis of the presumption of soundness. The appellant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see Horn, 25 Vet. App. at 234-35 (holding that the burden of proof in presumption of soundness cases rests with VA); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). Initially, the Board notes that the Veteran's VA treatment records show complaints and treatment for chronic headaches. The December 2009 and March 2012 VA examiners each diagnosed tension headaches, whereas the October 2013 VA examiner diagnosed conversion disorder, which manifested in chronic headaches. Thus, the Veteran has a current disability with respect to this claim. The Board notes that both the April 1951 enlistment and January 1952 separation examinations are negative for complaint, treatment, or diagnosis related to headaches, and the clinical examinations were normal. However, at his February 1953 enlistment examination, the Veteran indicated that he had a history of severe headaches. The associated clinical examination is not of record, and there are no related comments by the examining physician on the medical history form. A clinical examination in November 1955 was normal. However, at his July 1959 Medical Evaluation Board (MEB), the finding was "psychogenic musculoskeletal reaction, chronic, severe, manifested by headaches for many years" with a date of onset of approximately 1945. The MEB also found that the disability was not permanently aggravated by service. The few remaining service treatment records of record are related to immunizations, and any records that may have documented treatment or evaluation for a psychiatric or headache disability in service, including those records associated with the MEB report, are not available. With no clinical diagnosis of headaches, regardless of type, noted at entrance to either period of service, the Veteran is presumed to have been sound. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Clear and unmistakable evidence that a disability preexisted and was not aggravated by service must be found in order to rebut this presumption of soundness. At the December 2009 VA examination, the Veteran reported that he had had headaches intermittently prior to his military service. The examiner diagnosed chronic daily headache, tension type. He opined that the headaches are not caused by or a result of his service based on the complaint of headaches prior to his service, the nature of the headaches, the duration of the headaches, and the lack of exacerbating features in the medical history. In a November 2012 opinion, the examiner reiterated this opinion and deferred the question of whether the headaches were caused by an acquired psychiatric disorder to a psychiatrist. The March 2012 VA examination report documents a subjective medical history of pre-existing global headaches that continued during service and since the Veteran's discharge from service. The Veteran described the headaches as daily and moderate in nature. The examiner diagnosed tension headaches and opined that the headache disability clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond its natural progression by in-service injury, event, or illness. The rationale for this opinion was that the Veteran's verbal history indicated that the headaches he experienced prior to entrance into the military were of the same frequency and severity and duration and anatomic location as now and that the Veteran could describe no specific physical service-connected event or traumatic event that preexisted his headaches. Therefore, the examiner concluded that there had not been aggravation of the headaches beyond natural progression. A VA psychiatric opinion was obtained in October 2013. The examiner noted the diagnosis of psychogenic musculoskeletal reaction in service and indicated that the current nomenclature for such disability was conversion disorder. The examiner further reported that his review of the treatment notes of record showed complaints and hospital admissions consistent with that diagnosis. The Veteran's self-reported medical history at the examination reflected an onset of headaches in the third grade. The examiner noted that such history was consistent with the findings of an onset of 1945 at the MEB, as well as the history from the March 2012 VA examination and also observed that the VA examination from December 2009 supports the finding that the Veteran's headaches were not caused by any factor associated with service. The examiner opined that, by the history obtained at the examination as well as at the March 2012 VA examination, the Veteran's headache disability clearly and unmistakably preexisted service and was not aggravated by service. VA treatment records show chronic headaches on the Veteran's Problem List, but rare treatment for them. In June 2005, the Veteran had complaints of headaches, but no diagnosis was made. In August 2006, the Veteran reported having had a headache since his house burned down several weeks prior. In August 2008, the Veteran had had a headache for two weeks and said they were worse in Spring and Fall with allergies. Chronic headaches were diagnosed. There were complaints of headaches with nitroglycerin use in December 2008. In August 2013, the Veteran indicated that he had had frontal and top of head headaches since the Air Force. Based on the above, the Board finds that there is clear and unmistakable evidence both that the Veteran's headache disability preexisted either period of his military service and was not aggravated by either period of service. The Veteran's self-reported history of a disability in February 1953 is not itself clear and unmistakable evidence of the onset of headaches prior to service. The onset date of 1945 noted at the July 1959 MEB is also insufficient on its own, but it is a factor in favor of preexistence. See Horn, 25 Vet. App. at 240 (holding that an unexplained "X" in a box on a Medical Evaluation Board report is not clear and unmistakable evidence that the disability was not aggravated by service). However, the Board finds that these factors along with the Veteran's repeated description of onset prior to service at the VA examinations, the March 2012 VA examiner's finding that the pre-service headaches were consistent with the current headaches, and the October 2013 VA examiner's finding that the Veteran's third grade, pre-service onset was consistent with the in-service diagnosis of psychogenic musculoskeletal reaction and the current diagnosis of conversion disorder are in totality sufficient to meet the high standard of clear and unmistakable evidence that the Veteran had a headache disability prior to his enlistment into military service. This evidence leaves no debate as to whether the Veteran's headaches preexisted service. VA has met its burden to rebut the first prong of the presumption of soundness. Additionally, the Board determines that there is clear and unmistakable evidence that the headache disability was not aggravated by service. The Veteran has not identified any event, injury, or illness in service that suggests a change in severity of the disability. However, the burden is on VA to show that his headaches were not aggravated and the Veteran need not submit any evidence of aggravation. The only service record discussing the headache disability is the July 1959 MEB report. Nevertheless, the March 2012 and October 2013 VA examiners both indicated that the Veteran's self-reported medical history including a description of the headaches that occurred before and during service were consistent such that there had been no change or aggravation beyond the natural progression of the disability. The MEB report reflects that the Veteran's headache disability was deemed to have a marked impact on his military service, but a mild effect on civilian service. The report does not suggest that the change in impact was due to a change in severity of the headaches during service. In light of the above facts, the Board finds that there is clear and unmistakable evidence that the Veteran's headache disability was not aggravated by service. This evidence is undebatable as it concerns both the evidence contemporaneous with service and the expert medical opinion evidence of examiners who have reviewed the evidence in the claims file, and interviewed and examined the Veteran. It is not left open to reasonable interpretation as to whether his headaches were not aggravated. Consequently, the Board finds that the Veteran's headaches, including as a manifestation of a psychiatric disability, clearly and unmistakably preexisted service and clearly and unmistakably were not aggravated by service. Thus, the presumption of soundness is rebutted. When the presumption of soundness is rebutted, the claim is denied. Therefore, service connection for headaches, including as a manifestation of a psychiatric disability is denied. See 38 U.S.C.A. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 3.304. ORDER Service connection for headaches, including as a manifestation of a psychiatric disability, is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs