Citation Nr: 1417841 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 08-01 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1970. This matter originally came to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which inter alia denied entitlement to service connection for posttraumatic stress disorder (PTSD) and headaches. The Veteran testified at an RO hearing in April 2007, and testified at a Board hearing in August 2008; the transcripts are of record. The Board remanded the case in October 2009 for additional development. A September 2011 Board decision inter alia denied service connection for migraine headaches. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's September 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the August 2008 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. This decision satisfies that request. FINDING OF FACT Migraine headaches were not manifested during service, and current migraine headaches are not otherwise related to the Veteran's active service. CONCLUSION OF LAW Migraine headaches were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In April 2006, a VCAA letter was issued to the Veteran with regard to his claim of service connection for migraine headaches. The letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided an opportunity to set forth his contentions during hearings before a Decision Review Officer (DRO) in April 2007 and the undersigned VLJ in August 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a VA hearing officer fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The DRO and the VLJ who presided over the hearings articulated the issue on appeal, asked questions relevant to the etiology of the claimed headache disorder, and solicited testimony regarding outstanding evidence. The VLJ even suggested that certain evidence the Veteran mentioned during the hearing "would be helpful" in establishing his claim and indicated that he would hold the record open for 60 days so that the Veteran could obtain those records. However, neither the DRO nor the VLJ addressed the necessary elements to establish entitlement to service connection, nor did they explain that evidence showing a relationship to active service or recurrent headaches since active service would be helpful in establishing the claim. The Board finds that any error with regard to the notice and assistance contemplated in Bryant was harmless error. In September 2013, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the conduct of the hearings. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the October 2009 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and post-service VA outpatient treatment records. At the Board hearing the Veteran testified that he had sought treatment at the Vaughn Medical Center, previously the Selma Medical Center, in the 1980's for headaches. The Veteran submitted documentation from Vaughn Medical Center which reflects that he sought emergency room treatment on one occasion for the following dates: June 1980, October 1983, February 1986, July 1989, and January 1991. He sought inpatient treatment on one occasion in April 1994 and was discharged 7 days later. He sought emergency room treatment on one occasion in November 1998 and December 1998. He sought inpatient treatment on one occasion in May 2004 and was discharged 2 days later, and sought emergency treatment on two occasions in May 2004. The records were unable to be retrieved as the dates were beyond 10 years. The documentation does not reflect the purpose for the emergency room and inpatient visits from 1980 to 1998, but does reflect that he was treated for appendicitis, urinary retention, and dizziness in 2004. As such records are unavailable, the Board finds that further efforts to retrieve such records would be futile. See 38 C.F.R. § 3.159(c)(1). The Veteran also testified that he worked for the Southern Railroad from 1977 to 1995 and experienced headaches during that time. The Veteran recalled that he had undergone a physical during such employment. The evidence of record reflects that the U.S. Railroad Retirement Board determined that the Veteran was disabled under the Railroad Retirement Act effective September 1995. In light of the Veteran's testimony, the RO was requested to attempt to obtain the Veteran's records from the Southern Railroad and/or U.S. Railroad Retirement Board. In February 2010, the AMC sent correspondence to the Veteran requesting that he complete a VA Form 21-4142, Authorization and Consent to Release Information, to authorize release of the Veteran's records. The Veteran did not respond with a release, thus VA is unable to obtain any records from Southern Railroad and/or U.S. Railroad Retirement Board. While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The law also provides that a claimant for VA benefits has the responsibility to present and support the claim. 38 U.S.C. § 5107(a). The Board concludes that it has satisfied its duty to assist and in light of the Veteran's failure to respond there is no remaining duty under the VCAA to attempt to obtain the records. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In September 2010, the Veteran was afforded a VA examination, and an etiological opinion was proffered in November 2010 with regard to a causal relationship to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board concludes that VA's duties to the Veteran have been fulfilled with respect to the matter in appellate status. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). A Report of Medical History completed by the Veteran in May 1966 for enlistment purposes reflects that he checked the 'Yes' box for 'frequent or severe headache.' The examiner noted that he has occasional mild headache secondary to colds. Service treatment records reflect that the Veteran complained of cold symptoms on a number of occasions during service. An October 1967 clinical entry reflects complaints of a head cold and stuffy nose. The impression was allergies and sinusitis. The service treatment records do not specifically reflect any complaints of headaches. A September 1969 Report of Medical Examination conducted for separation purposes reflects that his 'head, face, neck, and scalp' and 'sinuses' were clinically evaluated as normal. On a September 1969 Report of Medical History, the Veteran checked the 'No' box for 'frequent or severe headache.' A July 1980 VA outpatient treatment record reflects that the Veteran sought treatment complaining of headaches on and off for the past four years. The diagnoses were anxiety neurosis and chronic headaches, unknown etiology. In December 2005, the Veteran claimed entitlement to service connection for headaches which he stated began when his unit was assisting the police to search the beaches for dead bodies. In a later statement and testimony before the RO and Board, the Veteran stated that his headaches began during service as he was sitting in a room 8 hours per day reading and completing papers for study courses in mechanics. At the Board hearing, he testified that he received aspirin from a medic but this was not recorded. He stated that his headaches occurred every evening after studying. In September 2010, the Veteran underwent a VA examination. The Veteran reported that he has a headache in the right temporal area mostly when he is sitting and thinking, watching television, and sometimes when he drinks a glass of water. The pain starts in the tooth and goes up into the head. He has a headache on average about three times a week, and the headaches last for about an hour. He reported that he began having headaches between 1966 and 1968 when he was reading manuals to become a mechanic. He does not recall seeing a physician in service. He reported that he continued to have headaches over the years. He reported that during service he was driving a vehicle and was hit from behind and may have hit his head against something. The examiner diagnosed chronic headache, no specific etiology for the headaches was evident. In November 2010, the examiner conducted a review of the claims folder. The examiner noted that the Veteran's Report of Medical History did not mention any head injury or frequent or severe headache. His Report of Medical Examination was normal. His enlistment examination, he checked yes to frequent or severe headache and on examination of that same date it was mentioned occasional mild headache secondary to cold. He received treatment for head and chest cold or upper respiratory infection in service. There was no documentation of being treated for headaches in service. The examiner noted that he had an admission to psychiatry in July 1980 and he mentioned that he had been having a headache on and off for the past four years. The examiner stated that based on review of the claims folder and service treatment records, his chronic headaches were less likely as not due to or as a result of any event in service or related to any treatment he received in service. Upon review of the evidence of record, the Board has determined that service connection is not warranted for migraine headaches. As detailed, although the Veteran reported suffering from headaches secondary to colds upon entry into service, service treatment records do not reflect any treatment for headaches during service. Moreover, he denied any headaches upon separation from service and his separation examination reflected normal clinical findings. The first documentation reflecting a complaint of headaches was in July 1980 and the Veteran reported only experiencing headaches for the prior four years, thus since 1976, which constituted a six year period after separation from service. The lack of any evidence of migraine headaches between the period of active duty and the initial findings of documented complaints of headaches weighs against the claim. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, a VA examiner examined and interviewed the Veteran, and reviewed the claims folder, and determined that his chronic headaches were not due to service in light of the lack of treatment in service. The Board accepts the examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records and an examination of the Veteran. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, there are no contrary opinions with regard to the etiology of his migraine headaches. The Board has considered the Veteran's contention that a relationship exists between his migraine headaches and service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to his current symptoms, his symptoms in service, and their continuation since service. However, the Board finds that the reported history of symptoms during service does not establish that chronic migraine headaches existed at the time. As detailed, despite the Veteran's testimony that he experienced headaches during service, the contemporaneous service treatment records generated during that time do not reflect any complaints, and he specifically denied any problems with headaches upon separation. Moreover, ten years later he complained of headaches to a VA examiner but reported that the symptoms had been present for only the prior 4 years. Thus, despite the Veteran's report that his migraine headaches are due to service, for purposes of undergoing medical treatment he reported a period of onset of approximately six years after separation from service. The Board has weighed the Veteran's statements as to headaches symptomatology onset with the medical evidence of record, to include the service treatment records and post-service medical evidence and after weighing the lay and medical evidence, the Board finds that the lay evidence as to in-service incurrence and continuity of symptomatology is not consistent and certainly less convincing than the objective medical evidence of record. A chronic headache disability was not diagnosed during service or at the time of separation from service, and was not diagnosed until years after separation from service. The negative clinical and documentary evidence post service for many years after service is more probative than the remote assertions of the Veteran, especially since current assertions for claims purposes are not consistent with more contemporaneous statements made for treatment purposes. In conclusion, a preponderance of the evidence is against a finding that the Veteran's migraine headaches are causally related to the Veteran's active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for migraine headaches is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs