Citation Nr: 1327062 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-15 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for headaches, claimed as secondary to service-connected ischemic heart disease. 2. Entitlement to service connection for dizziness, claimed as secondary to service-connected ischemic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to March 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran's headaches were caused or aggravated by service-connected ischemic heart disease. 2. The most probative evidence is against a finding that the Veteran has a chronic disability, related to his subjective reports of dizziness, that was caused or aggravated by service-connected ischemic heart disease. CONCLUSIONS OF LAW 1. Headaches were not caused or aggravated by service-connected ischemic heart disease. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. A chronic disability manifested by dizziness was not caused or aggravated by service-connected ischemic heart disease. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A May 2008 letter satisfied the duty to notify provisions and notified the Veteran of the regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), VA medical treatment records, and the Veteran's statements. A VA examination was provided in August 2008 and a VA medical opinion was obtained in February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2008 VA examiner reviewed the claims file, examined the Veteran, and provided an opinion regarding headaches, but did not include a rationale. With respect to dizziness, the examiner indicated that there was no diagnosed condition and that dizziness was not related to CAD. However, the examiner did not discuss aggravation. Therefore, the August 2008 opinions are not adequate. The Board finds that the February 2012 VA examiner's opinions are adequate. The examiner reviewed the August 2008 VA examination report and the claims file and provided an opinion that the Veteran's headaches were not caused or aggravated by ischemic heart disease. With respect to dizziness, the Board notes that the examiner did not provide an opinion as to whether dizziness was caused or aggravated by the ischemic heart disease. However, the examiner explained the reasoning behind the conclusion and indicated that there was no diagnosis with respect to the Veteran's reports of dizziness. The February 2012 examiner disagreed with the August 2008 VA examiner's indication that the dizziness was related to hypotension caused by dehydration. The February 2012 examiner pointed out that the blood pressure readings did not indicate hypotension. The examiner indicated that the dizziness remained subjective and could not be substantiated or diagnosed. As the examiner explained the reasoning as to why an opinion could not be provided, the Board finds that the February 2012 examiner's opinions are adequate and substantially complied with the Board's January 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Finally, the Board recognizes that there is no medical opinion as to whether the claimed disabilities are causally or etiologically related to active service. However, there is no indication or contention in the record that any of the claimed disabilities are related to the Veteran's active service. Therefore, a VA opinion as to direct service connection is unnecessary. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist. Legal criteria Service connection - in general Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Analysis Service Connection for Headaches The Veteran requested service connection on a secondary basis for his headaches. The record does not contain any assertion with respect to direct service connection. Therefore, the Board will adjudicate the claim solely on the basis of secondary service connection. The record shows that the Veteran claimed that his headaches were caused or aggravated by his ischemic heart disease. The record shows that the Veteran has been diagnosed with tension headaches and the Veteran is service-connected for ischemic heart disease. Therefore, the question becomes whether the Veteran's headaches were caused or aggravated by the service-connected ischemic heart disease. The Veteran was provided a VA examination in August 2008. The Veteran stated that he had headaches, one to two times per week. The examiner listed a diagnosis of tension headaches, not related to diabetes, not related to CAD (coronary artery disease). As explained previously, the Board finds that the VA examiner's opinion was inadequate as there was no rationale for the expressed opinion. In February 2012, a VA examiner reviewed the August 2008 VA examination report and the claims file. The examiner noted that review of records found that the Veteran had other conditions which can trigger headaches. The examiner pointed out that the Veteran reported that he usually wakes up with a headache and that symptoms resolved without medication. The Veteran also reported that his headaches began three to four years ago. The examiner noted that the Veteran admitted to allergy related sinus problem which "may contribute to headache." The examiner noted that the Veteran's heart disease was felt to be stable. The examiner opined that: ". . . it is not likely heart disease causes nor aggravated tension headaches." The Board finds the February 2012 VA examiner's opinion to be the most probative evidence with respect to the etiology of the Veteran's headaches. The examiner reviewed the evidence and noted that the Veteran had other conditions that can trigger headaches including a sinus problem (which is not service connected) and provided a negative nexus opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes the Veteran's belief that his headaches were caused by his service-connected ischemic heart disease. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the Veteran is not considered competent to provide an opinion as to whether his heart disease caused or aggravated his headaches. This is a complex medical question that requires medical training, which the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In contrast, the February 2012 VA examiner has medical training and knowledge and provided a negative nexus opinion. 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"). Finally, the Board recognizes that the Veteran indicated that his headaches were caused by his allergies and hypertension. However, the Veteran is not service-connected for a sinus or allergy disability or hypertension. Therefore, service connection on a secondary basis is not warranted. See 38 C.F.R. § 3.310. In light of the above, the Board finds that service connection on a secondary basis is not warranted for headaches, claimed as secondary to service-connected ischemic heart disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. The claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55-57. Service Connection for Dizziness The Veteran contends that he has dizziness that is caused or aggravated by his service-connected ischemic heart disease. Again, the record does not contain any assertion with respect to direct service connection. Therefore, the Board will adjudicate the claim solely on the basis of secondary service connection. The evidence of record includes subjective complaints of dizziness. However, the most probative evidence does not reflect that a diagnosis has been provided with respect to the Veteran's reported symptom of dizziness. The Board recognizes that the August 2008 VA examiner indicated that the Veteran's subjective report of dizziness was more likely than not orthostatic hypotension as a result of dehydration. However, the examiner also stated that the neurological examination was normal and there was "no diagnosed condition." The dizziness was not related to CAD "which is stable." The February 2012 VA examiner reviewed the claims file and indicated that there was no evidence of a diagnosis of dizziness or hypotension. The review of all blood pressure readings found none less than 112/70. The examiner noted that there was no other objective evidence with review of all available data to associate the Veteran's subjective report of dizziness with heart disease, this is more likely than not related to some other cause, but remains subjective and "cannot therefore be substantiated or diagnosed." The Board recognizes that the February 2012 VA examiner did not provide an opinion in terms of the etiology of the Veteran's dizziness. However, the Board finds that the February 2012 VA examiner's opinion is the most probative evidence with respect to whether the Veteran has a chronic disability manifested by headaches. The examiner reviewed the August 2008 VA examination and the claims folder and indicated that there was no evidence of hypotension. The examiner specifically noted that the Veteran's recorded blood pressure readings were no less than 112/70. The examiner stated that there was "no other objective evidence" to associate dizziness with heart disease, but that it could not be substantiated or diagnosed. The Board finds the February 2012 examiner's opinion to be the most probative as the examiner pointed to the medical evidence of record and why an opinion could not be provided in this case as the Veteran's reported dizziness could not be substantiated or diagnosed. Thus, the most probative evidence fails to demonstrate that the Veteran has a chronic headache disability caused or aggravated by a service-connected disability. Although the August 2008 VA examiner indicated that the Veteran's dizziness was more likely due to hypotension due to dehydration, the examiner also went on to state that there was "no diagnosed condition." The February 2012 VA examiner's opinion, which the Board has found to be the most probative, indicated that there was no evidence of hypotension and that the Veteran's dizziness could not be substantiated or diagnosed. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the case of McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), wherein the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. However, the facts of the present case are distinguished from those of McClain, id. The evidence does not reflect that the Veteran had a disability that resolved. Rather, as discussed above, the Board finds that the most probative evidence does not establish that the Veteran had a disability related to his dizziness at any point during the appeal period or prior to his filing a claim for service connection. See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013). As explained above, the Veteran is not competent to provide an opinion as to whether his service-connected ischemic heart disease caused or aggravated dizziness or whether he has a diagnosed disability. This is a complex medical question that requires medical training, which the Veteran has not been shown to possess. The Veteran can state that he experiences dizziness, but he is not considered competent to diagnose a chronic disability manifested by headaches or to provide an opinion as to its etiology and relationship to his service-connected ischemic heart disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, the Board recognizes that the Veteran indicated that his claimed dizziness was caused by his allergies or hypertension. However, the Veteran is not service-connected for a sinus or allergy disability or hypertension. Therefore, service connection on a secondary basis is not warranted. See 38 C.F.R. § 3.310. In light of the above, the Board finds that service connection on a secondary basis is not warranted for dizziness, claimed as secondary to service-connected ischemic heart disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. The claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for headaches, claimed as secondary to service-connected ischemic heart disease, is denied. Entitlement to service connection for dizziness, claimed as secondary to service-connected ischemic heart disease, is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs