Citation Nr: 1341307 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-19 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a neurological disorder, to include migraines. ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The June 2010 Rating Decision denied the Veteran's claim for service connection for his neurological disorder. The Veteran filed a Notice of Disagreement in August 2010. In May 2011, the RO furnished the Veteran a Statement of the Case. The Veteran perfected his appeal with a Form 9 in July 2011. The Veteran requested a videoconference hearing in his July 2011 substantive appeal. The Veteran was scheduled for a videoconference hearing in August 2011. However, the Veteran did not appear at the hearing. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claim (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such file reveals that the documents are either duplicative or not relevant to the issue on appeal. FINDING OF FACT A neurological disorder, to include migraines, was not shown in service, and the most probative evidence fails to link the Veteran's current neurological disorder to service. CONCLUSION OF LAW A neurological disorder, to include migraines, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this appeal, in a December 2009 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The December 2009 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The June 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the December 2009 letter meets the VCAA's timing of notice requirement. Further, the Veteran was medically evaluated in conjunction with his claim in March 2010. The Board notes that the VA examiner correctly recited the Veteran's pertinent medical history and examined the Veteran's disability. It is thus clear that the examiner had the information required to properly consider the Board's inquiries. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The resulting medical opinion is considered adequate for rating purposes as it is based on consideration of the Veteran's medical history and describes the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, private treatment records, VA treatment records, a report of VA examination in March 2010, Social Security Administration records, and the Veteran's statements. The Board notes that, in addition to the private treatment records obtained and considered herein, VA made reasonable efforts to obtain private treatment records from Dr. D., Dr. R., Dr. L., and Allen Memorial Hospital. However, these records were unavailable. Under these circumstances, the Board finds that VA has fulfilled its duty to attempt to obtain the Veteran's private treatment records, and that no further action in this regard is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran contends that he is entitled to service connection for a neurological disorder, to include migraines, on the basis that he developed the condition while in service. Specifically, he alleges that he incurred the disorder after a head trauma he suffered in 1969, when a bomb exploded near him. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 28 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). With respect to the issue of current diagnosis, the first element of service connection, the Board notes that the Veteran's VA and private treatment records as well as the March 2010 VA examination report reflect that the Veteran currently has a diagnosis of migraine headaches. His disability is manifested by the symptoms the Veteran has reported, including headaches, nausea, vertigo, and sensitivity to sound and light. The Veteran is also considered competent to report the observable manifestations of this claimed disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board thus finds the foregoing evidence sufficiently establishes a current neurological disorder, manifested by migraine headaches. The second element of service connection requires evidence of an in-service event, injury or occurrence of the claimed disease or disorder. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). This provision does not establish a presumption of service connection. Rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both of those inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997). Service personnel records show that the Veteran received the Army Commendation Medal with a V device, which is indicative of combat. Therefore, the Board finds that the combat presumption applies in this case. Additionally, the Veteran reports that he suffered an injury, including a potential concussion, after an explosion occurred near him while he was serving in Vietnam. In light of the foregoing, the Board concedes the Veteran was exposed to rocket exposure in Vietnam. In order to satisfy the third and final element of service connection, there must be evidence of a link or nexus between the in-service event and the current diagnosis. The Board notes that the medical evidence of record fails to sufficiently link the Veteran's current disability to his in-service exposure. The Board recognizes that the Veteran's service treatment records indicate he reported a history of frequent or severe headaches in his August 1967 pre-induction examination. However, there is no other notation that the Veteran suffered from headaches or any neurological condition while in service, and the Veteran denied a history of frequent or severe headaches at his September 1969 separation examination. The Board finds that the Veteran's report contemporaneous to service is credible. Thus, the Board fids that the Veteran did not have headaches in service. The Board observes that some private treatment records from the 1980s were unavailable, but has taken into consideration the Veteran's reports that he began seeking treatment for his neurological symptoms in the 1980s after he was struck in the head by a boat oar. Post-service private and VA treatment records from October 1989 to November 2009 indicate that the Veteran received intermittent treatment for his neurological symptoms, including Meniere's disease, migraines, vertigo, nausea, and dizziness. In treatment records dated October 1989, May 1991, March 1995, July 1997, December 2003, and April 2009, the Veteran reported that his symptoms began some time during the 1980s, after he was hit in the head with an oar. This evidence is consistent with the Board's finding that headaches did not first manifest in service. Review of the Veteran's VA treatment records indicate that physicians have provided varied explanations for the Veteran's neurological symptoms, including his headaches. May 2003 VA treatment records indicate that the increase in the Veteran's headaches seemed to be "related to weather changes." Then, in December 2003, the physician opined that the Veteran was experiencing the "common migraine." A VA treatment record from April 2006 noted that the Veteran's symptoms as migraine headaches with "some tension headache component" and that the Veteran's lack of sleep was contributing to his headaches. In a VA treatment record from February 2008, the physician explained that the trauma the Veteran suffered from the boat oar and the one he sustained from an explosion while in service "may be contributors to what is happening particularly with his migraines, but also may be contributing to his dizziness." The records also indicate a potential diagnosis of Meniere disease at that time. Another record from March 2008 indicates that the probable Meniere disease, central neural hearing loss, and migraine headaches may be related to the explosion that the Veteran experienced. VA treatment records from March 2009 indicated that the Veteran was experiencing hyperacusis, which the physician opined may have been related to the Veteran's Meniere's disease and headaches. In April 2009, a VA treatment record described the Veteran's headaches as "most consistent with common migraine which is recurrent" and indicated that there was likely a "transformed component secondary to narcotics and caffeine." In VA treatment records from November 2009, the Veteran reported that his headaches were significantly better when he was at a low altitude. On VA examination in March 2010, the Veteran recounted the explosion and head injury he incurred in 1969 and stated that he had a brief loss of consciousness. He indicated to the examiner that he did not have headaches at that time, but that he first developed them in the early 1970s. He stated that the headaches gradually increased in frequency. The Veteran also described the head injury he incurred in the 1980s when he was hit by a boat oar. He told the examiner that he began seeking treatment at that time. The Veteran stated that the headaches occurred five to six times per week and were four or five out of ten in their usual intensity, and eight to nine out of ten at their worst. They lasted up to 18 hours and mostly resembled migraine headaches. He reported photophobia, throbbing, nausea, and bilateral occipital and parietal pain. He told the examiner he felt dizzy on a daily basis, which inhibited his ability to drive a car. He also described episodes of vertigo, but stated that he had not had an episode of vertigo in two or three years prior to the examination. He indicated to the examiner that the headaches woke him at night and interfered with his sleep. Additionally, the Veteran asserted that he had mild malaise which frequently occurred in the afternoon, especially with the headaches. The Veteran also reported mild irritability, but no restlessness. The examiner did not observe any loss of physical or cognitive functions. No psychiatric manifestations were noted and the Veteran's vision and hearing evaluations appeared normal. The examiner noted that the Veteran's judgment appeared normal, his social interaction appropriate, and the Veteran was oriented in all three spheres. The examiner indicated that the Veteran had more than three subjective symptoms interfering with his work and daily living, including: headaches, tinnitus, vertigo, and hypersensitivity to sound and light. The examiner noted only one neurobehavioral effect of the symptoms: irritability, which did not interfere with the Veteran's workplace or social interactions. The examiner opined that the headaches were consistent with the common migraine headache and were less likely than not related to or the result of the explosion the Veteran experienced in Vietnam since they did not begin until a few years later. The examiner also took note of the Veteran's history of vertigo, tinnitus, and decreased hearing, which were not present at the examination. He reiterated that these symptoms were not present at the time of the injury and the Veteran reported their onset as the 1980s. The examiner opined that given that information, these symptoms were also less likely than not related to or the result of the injury the Veteran reported from Vietnam. The examiner further stated that because the symptoms had gradually worsened, which was evidence against the symptoms being traumatic, the progression was more suggestive of a labyrinthine dysfunction or Meniere's disease. The Board notes that in February and March of 2008, VA treatment records indicate a potential link between the Veteran's claimed neurological disorder and the in-service injury he suffered as a result of a nearby explosion. Specifically, those records indicate that the Veteran's symptoms "may be" due to the in-service explosion. However, those opinions are speculative in nature and therefore cannot form the basis of a grant of service connection for the claimed disability. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that the use of the phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the veteran's death may or may not have been averted"). The Board finds the March 2010 VA examiner's opinion to be highly probative to the question at hand. The examination report expressly demonstrates the examiner's review of the Veteran's symptoms and the his lay contentions regarding the in-service head trauma. The examiner opined that it was less likely as not that the Veteran's neurological condition was related to service since the symptoms, headaches, did not begin until a few years after discharge. In making his determination, the examiner noted that the symptoms were "consistent with common migraine headaches" and explained that the Veteran's symptoms had worsened gradually, which was against them being traumatic, and instead was more suggestive of a labyrinthine dysfunction or Meniere's disease. Indeed, the March 2010 VA examiner thoroughly examined the Veteran and considered all relevant factors, including: the Veteran's lay statements, the onset of the symptoms, all applicable facts, and the in-service head trauma. Finally, he provided an adequate rationale in determining that the Veteran's neurological disorder, manifested by migraine headaches, was less likely as not caused by the explosion he experienced in service. In light of the support the examiner gave for his opinion, the Board finds that the opinion contains sufficient rationale and that it is probative in adjudicating the claim of service connection. Turning to the Veteran's lay statements regarding his neurological disorder and headaches, the Board notes that included with his November 2009 formal claim, the Veteran provided his opinion of the etiology of his neurological disorder. He indicated that his neurological symptoms began in February 1969, after the explosion that occurred near him in Vietnam. The Veteran described the explosion and explained that a mailroom metal safe shielded him, but that he sustained a concussion. He further reported that the explosion and injury resulted in a progressive neurological condition. He indicated that he could not drive due to dizziness and vomiting. He stated that his migraine headaches occurred almost daily and that he was sensitive to noise. He also reported experiencing vertigo, which inhibited his ability to read newsprint, watch TV or movies, or look at computer screens. The Veteran submitted another statement in December 2009. In it, he described his headaches as beginning in the early 1970s. He indicated that they worsened during the 1980s, when he experienced an increase in frequency and he also began experiencing vomiting and vertigo. The Veteran reported that he began seeking medical treatment for these symptoms at that time. He stated that none of the treatments or medications had any effect on his condition and that he began experiencing additional symptoms including dizziness and sensitivity to sound and light, in addition to the symptoms he had experienced previously. He reiterated that he believed the disorder began as a result of the head injury he suffered in 1969 in Vietnam. The Veteran submitted a final statement with his substantive appeal, filed in July 2011. He indicated that he believed the VA examination recorded incorrect information. He reported complaints of impairment of memory, attention, concentration, and executive functions contrary to what was found upon examination. Additionally, he indicated having vision problems, as well as having problems with hypersensitivity to sound and light all of the time, rather than having those symptoms only during the headaches. He also reiterated his contention that the headaches and sensitivity symptoms began upon returning from Vietnam. He further stated that he struggled with the condition for over a decade before the headaches became "so numerous" that he felt there was a serious medical problem and sought treatment. He indicated that he had previously reported the onset of the disorder as the injury involving a boat oar, but that it was not until the doctors asked if he had been in an explosion that he linked the symptoms to it. He stated that doctors had associated his problems with that event, and the Veteran indicated that the latter explanation, involving the explosion, seemed "more accurate" since his problems began upon returning from Vietnam. Finally, the Veteran disagreed with the VA examiner's opinion that the symptoms may be linked to Meniere's disease, stating that "that diagnosis has been ruled out." The veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived were directly experienced through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). However, while the Veteran is competent to report his symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise, such as the diagnosis or etiology of neurological disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, migraines, vertigo, dizziness, nausea, and sensitivity to sound and light can have many causes and require medical testing to diagnose and medical expertise to determine the etiology of those symptoms. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disorder is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran is not competent to opine on the etiology of his current neurological disorder. The Board recognizes that the Veteran reported frequent or severe headaches in his August 1967 pre-induction examination. However, the remaining service treatment records are silent regarding headache or other neurological symptoms, and the Veteran denied any history of neurological or headache problems at his separation examination. While the Board recognizes that the Veteran now asserts that he has had his condition since service, the Board notes that the Veteran reported throughout his treatment records from 1989 to 2009 that the onset of his neurological and migraine symptoms occurred in the 1980s after he received a blow to the head by a boat oar. Due to the inconsistencies noted above, the Board finds the statements while seeking treatment from 1989 to 2009 to be significantly more reliable than statements being made by the Veteran in the course of his claim VA benefits. See Buchanan v. Nicholson, 451 F.3D 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In light of the foregoing, the Board finds the Veteran's statements concerning the onset of headaches which were made through the course of his claim to be less credible than those made during treatment and therefore assigns them no probative weight. For the reasons set forth above, the Board finds the Veteran's service treatment records, the Veteran's lay statements provided during the course of treatment from 1989 to 2009, and the March 2010 VA examiner's opinion of greater probative value regarding the etiology of his neurological disorder than the Veteran's lay contentions made during the course of his claim for benefits and the speculative opinions provided in the VA treatment records in February and March of 2008. Thus, while the first two elements for service connection have been met, the weight of the competent and probative evidence does not show the Veteran's current neurological disorder is related to service. Accordingly, service connection for a neurological disorder, to include migraines, is not warranted. See 38 C.F.R. 3.303 (2013). Under these circumstances, the Board finds that the claim for service connection for a neurological disorder must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56(1990). ORDER ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs