Citation Nr: 1604177 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 08-14 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to medication associated with service-connected atypical psychosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision in which the RO denied service connection for migraine headaches. In October 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded the case in December 2013 and March 2015 for further development. The Board finds that the RO substantially complied with the Board's most recent remand instructions. See 38 U.S.C.A. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT There is competent evidence of record that migraine headaches are not related to service. CONCLUSION OF LAW The criteria for establishing service connection for migraine headaches have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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, which are: (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. In this case, the agency of original jurisdiction (AOJ) issued a letter dated March 2006 to the Veteran. This letter explained the evidence needed to substantiate the claims for service connection, as well the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes obtaining "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's service treatment records, post-service treatment records and the Veteran's own statements in support of his claims. The claims file also contains the Veteran's relevant records from the Social Security Administration. The Veteran was afforded a VA examination, to include two subsequent addendums, responsive to his claim for service connection for migraine headaches. The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Applicable Law and Analysis In general, service connection may be granted for a disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of direct service connection, there must be (1) medical evidence of a current disability (2) medical evidence or in some cases lay evidence of in-service occurrence or aggravation of a disease or injury (3) and medical evidence of a nexus between an in-service disease or injury and the current disability See Hickson v. West, 12 Vet. App. 247, 253 (1999). When all the evidence is assembled, VA is responsible for determining 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran avers that his current headaches are a direct result of a head injury sustained in service while playing basketball. See Veteran's Statement in Support of Claim dated February 6, 2002; see also Decision Review Officer Hearing dated March 27, 2009, p. 3. The Veteran also states that his VA-prescribed medication may be the source of his headaches. See Statement in Support of Claim dated September 9, 2009. For the reasons set forth below, the Board disagrees and finds that service connection for a headache disability is not warranted either on a direct basis or secondary basis. Service treatment records demonstrate that the Veteran sustained a knee injury and a toe injury while playing basketball; there was no mention of a head injury or any complaints headaches at that time. See Service Treatment Records dated March 2, 1977 and January 20, 1978. Notably, the records demonstrate that the Veteran did complain of headaches at one point in service; however, the headaches stemmed from his motion sickness. See Service Treatment Records dated April 15, 1977. Otherwise, there were no other complaints of or treatments for headaches during service. Post-service, the Veteran's neurological exams were normal. See VA Treatment Records dated October 7, 1988 and January 2, 2008; see also SSA Disability Determination and Transmittal dated March 26, 2002. The first post-service mention of migraine headaches in the record was in 1988. At that time, the treating physician noted that the Veteran had "intermittent headaches" but did not mention the etiology of the headaches. See VA Treatment Notes dated October 7, 1988. VA treating physicians have made note of the Veteran's complaints of headaches during the years; however, none of the physicians have provided a positive link between the Veteran's headaches and his period of service. See VA Treatment Records dated April 9, 2007, December 14, 2007, and December 17, 2007. The Veteran was afforded a VA examination in March 2010. Most recently, a VA examiner provided an addendum opinion in June 2015. At that time, the examiner indicated that he reviewed all available records in rendering his opinion. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by the claimed in-service injury -namely, a fall while playing basketball. The examiner noted that there was no mention of a head injury in the Veteran's service treatment records, either in conjunction to a basketball-related fall or otherwise. The examiner also noted that other than motions sickness, the Veteran was not noted to have any complaints of headaches while in service. The June 2015 examiner also opined that the Veteran's headaches are less likely than not due to the Veteran's service-connected atypical psychosis or the medications associated with this disorder. The examiner reasoned that because there was no pattern for the onset of the Veteran's headaches, nor was there any evidence of headaches commencing after beginning the new medications, the headaches could not be associated with the medications. In addition, the examiner opined that the Veteran's headaches were not related to the Veteran's service-connected disability because headaches are not generally a symptom of atypical psychosis. The examiner ultimately diagnosed the Veteran with tension headaches. Also of record are statements from the Veteran and his fellow serviceman. 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. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent the Veteran relates his headaches to medications for his service-connected atypical psychosis, the Board finds that the Veteran is not competent to provide a positive nexus opinion between the two. In regards to the Veteran's claim of headaches due to an in-service fall, the Veteran is certainly competent to report having headaches during and since service. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, his report of the injury and continuity of symptomatology thereafter must be weighed against clinical evidence of record. The Veteran admits that he never sought treatment for his claimed in-service head injury. See Decision Review Officer Hearing dated March 27, 2009, p. 10. The evidence demonstrates that, other than a complaint of motion sickness, there were no complaints, treatments, or findings of migraine headaches in proximity to service or for many years thereafter. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the absence of treatment for the claimed disability a prolonged period after service constituted negative evidence against the claim). Also weighing against the claim is the opinion by the VA examiner in 2015 finding that the headaches are less likely than not caused or aggravated by service for the reasons cited above. The Board thus finds that the Veteran's statements and testimony attributing migraine headaches to service are less probative and do not provide a basis to establish service connection. Also of record is a statement from the Veteran's fellow serviceman, indicating that he witnessed the Veteran experience a severe headache while in service. See Statement in Support of Claim dated September 1, 2011. To the extent the Veteran submitted this lay statement for the purpose of attributing the Veteran's headaches to his period of service, the Board finds that the Veteran's fellow serviceman is certainly competent to report his own observations. However, similar to the Veteran's own statements, the serviceman's statement is outweighed by other evidence in the record - namely the contemporaneous service treatment records and the 2015 VA examiner's negative nexus. As such, the Board assigns little probative value to the lay statement in regards to the issue of etiology. After a review of the entire record, the Board finds that the evidence is insufficient to support a nexus between the Veteran's current headaches and his period of service. The Veteran has therefore failed to meet his evidentiary burden to establish all elements of his claim and service connection for migraine headaches is not warranted. Accordingly, after weighing all the evidence, the Board finds the preponderance of the evidence is against the claim discussed above, and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for migraine headaches is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs