Citation Nr: 1417447 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 11-06 428 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a bilateral lower extremity disability manifested by leg cramps. 3. Entitlement to service connection for dizziness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Moses, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1986 to September 1990. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Regional Office (RO) in Manila, Philippines, which denied service connection for a bilateral leg condition manifested by leg cramps, migraine headaches, and dizziness. In July 2012, the Veteran was scheduled to testify before a Member of the Board at a Board personal hearing (Travel Board) to be held at the RO in Pasay City, Philippines. Because the Veteran did not appear for the hearing, and has not requested to reschedule the hearing, the hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2013); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). The issues of service connection for migraine headaches and a bilateral lower extremity disability manifested by leg cramps are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The symptom of dizziness has been related by medical evidence and has been adjudicated to be a symptom rated as part of the 30 percent disability evaluation of the service-connected hypertensive cardiovascular disease. CONCLUSION OF LAW The criteria for service connection for dizziness have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a), 4.14, 4.104, Diagnostic Code 7007 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The September 2008 notice letter sent prior to the initial denial of service connection for dizziness apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection, what information and evidence she was to provide, and what information and evidence VA would attempt to obtain on her behalf. In a May 2012 notice letter, the RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. Although the May 2012 letter was sent after the initial adjudication of the Veteran's claim, the Veteran has been provided with ample opportunity to submit evidence and argument in support of the claim and to participate effectively in the processing of the claim during the course of the appeal, including the opportunity to testify before a Member of the Board, for which the Veteran did not appear and did not request to be rescheduled. Also, the evidence does not show, nor does the Veteran or the representative contend, that any notification deficiencies with respect to either timing or content have resulted in prejudice. The record raises no plausible showing of how the notice provided affected the essential fairness of the adjudication. In view of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA's duty to assist has been met. The claims file contains all available evidence pertinent to the claim. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claim and the record contains sufficient evidence to make a decision on the claim. The service treatment records are included in the claims file, and available post-service treatment records identified as relevant to the Veteran's claim have been obtained or otherwise submitted. The Veteran was afforded an August 2010 VA examination. The examination report is of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination report thereto reflects that all relevant testing was performed and findings advanced. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). When all the evidence is assembled, VA shall determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Dizziness The Board finds that the symptom of dizziness has been related by medical evidence and has been adjudicated to be a symptom of the service-connected hypertensive cardiovascular disease and was specifically considered as a symptom for the assignment of the 30 percent disability rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. When a veteran has separate and distinct manifestations attributable to the same injury, the Veteran should be compensated under different diagnostic codes; the critical element in permitting the assignment of several evaluations under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, in a January 2011 rating decision, the RO granted service connection for hypertensive cardiovascular disease as secondary to the service-connected hypertension with retinopathy, assigning a 30 percent disability rating under Diagnostic Code 7007, effective August 15, 2008. Diagnostic Code 7007 assigns a 30 percent evaluation when a workload of greater than 5 metabolic equivalent units (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 38 C.F.R. § 4.104. The August 2010 VA heart examination, on which the RO relied in its January 2011 rating decision, reflects that the Veteran reported a history of dizziness. The VA examiner noted dizziness as a problem associated with the diagnosed hypertensive cardiovascular disease and noted no other diagnosed disability with symptoms of dizziness. Because dizziness has been attributed by competent medical evidence to a medically known and service-connected hypertensive cardiovascular disease, further inquiry into whether the service connection criteria is met for dizziness under a separate diagnostic code would only result in pyramiding the diagnoses. See 38 C.F.R. § 4.14; see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (concluding that two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology). Therefore, the Board finds that the additional consideration of service connection for dizziness is not warranted. In sum, service connection cannot be awarded because service connection is already in effect for a disability that accounts for the symptom of dizziness. There is no other diagnosed disability in this case manifesting dizziness. For these reasons, the Board finds that the preponderance of the evidence is against the service connection claim for dizziness; therefore, the appeal must be denied and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for dizziness is denied. REMAND Service Connection for Migraine Headaches and a Bilateral Lower Extremity Disability Manifested by Leg Cramps A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims for service connection for migraine headaches and a bilateral lower extremity disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding whether an event, injury, or disease occurred in service, the service treatment records reveal that the Veteran complained of frequent headaches and sustained a right leg injury in service in February 1987. At the service separation examination, the service examiner noted that the Veteran had reported experiencing leg cramps and frequent headaches. Regarding persistent or recurrent symptoms of current disability, at an April 2006 VA general examination, the Veteran complained of headaches. Regarding an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, the Veteran's complaints of leg cramps and headaches during service, and a liberal construction of the Veteran's August 2008 application for benefits suggests that the Veteran currently experiences the same symptomatology related to leg cramps and headaches that she experienced in service. In addition, in the August 2010 VA heart examination report, the VA examiner noted that the Veteran had been experiencing leg edema as a side effect of the prescribed medication for hypertension. As there is no competent medical evidence on the question of whether the Veteran has currently diagnosed disabilities manifesting headaches and leg cramps, and no competent medical opinion on the question of whether current symptoms of disability are related to the in-service reports of symptoms, there is insufficient competent medical evidence on file for the VA to make a decision on the claims. In light of the "low threshold" for a medical opinion as announced in McLendon, the Board finds that a remand for a VA examination and medical opinion is necessary to help determine if the Veteran has current disabilities associated with the reported symptomatology and, if so, whether any current disability is etiologically related to service. Accordingly, the issues of service connection for migraine headaches and a bilateral lower extremity disability manifested by leg cramps are REMANDED for the following action: 1. Associate with the claims file any VA clinical documentation pertaining to treatment of migraine headaches and leg cramps that is not already of record. 2. Schedule the Veteran for a VA examination to help ascertain whether the Veteran has a current disability of migraine headaches and/or the bilateral lower extremity manifested by leg cramps and, if so, the likely etiology of each disability. All relevant documents associated with the claims file should be reviewed by the VA examiner in connection with the examination. In assessing the relative likelihood as to origin and etiology of the Veteran's current symptoms or disabilities, the examiner should express the following opinions: A) Does the Veteran have a current disability of migraine headaches and the bilateral lower extremity manifested by leg cramps? Please identify by diagnosis any disability that accounts for the complaints of headaches and leg cramps. B) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that each diagnosed disability is causally or etiologically related to service? In answering this question as to each disability, the VA examiner should specifically note and discuss the Veteran's complaints of experiencing frequent headaches and the Veteran's February 1987 in-service injury to the left leg. C) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the migraine headaches are caused by or a symptom of the service-connected hypertension, hypertensive cardiovascular disease, or depression? D) Is it at least as likely as not (i.e. 50 percent or greater chance) that the Veteran's migraine headaches are aggravated (that is, permanently worsened beyond normal progress of the disease) by service-connected hypertension, hypertensive cardiovascular disease, or depression? E) Is it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the leg cramps are caused by or a symptom of the service-connected hypertension or hypertensive cardiovascular disease? F) Is it at least as likely as not (i.e. 50 percent or greater chance) that the Veteran's leg cramps are aggravated (that is, permanently worsened beyond normal progress of the disease) by service-connected hypertension or hypertensive cardiovascular disease? If the opinion is that there is aggravation by any of the service-connected disabilities, the VA examiner is requested to provide an opinion as to an approximate baseline level of severity of the migraine headaches and leg cramps before the onset of aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. G) Are the leg cramps a symptom of sciatica from the non-service connected back disorder? H) Discuss leg edema as a side effect of the treatment for cardiovascular disease. Is leg edema the cause of the leg cramps? The VA examiner should provide a rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. After completion of the above, the claims for service connection for migraine headaches and a bilateral lower extremity disability manifested by leg cramps should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs