Citation Nr: 1608179 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 08-09 673A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a neck disability, including as secondary to a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran had active service from June 1980 to August 1981. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In May 2011, the Veteran testified before a Veterans Law Judge who has since retired from the Board. The Veteran was offered the opportunity for another hearing, but she declined. In September 2011 and April 2013, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's diagnosed migraines clearly and unmistakably existed prior to service and were not permanently aggravated by her service. 2. The Veteran's diagnosed neck disability did not begin during active service and it is not shown to be otherwise etiologically related to military service, or any service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have not been met. 38 U.S.C.A. §§ 1111, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for service connection for a neck disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided by letter in June 2007. Additionally, neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA records have been obtained. Additionally, the Veteran testified at a Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above 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. Here, during the May 2011 Board hearing, the Veteran was assisted at the hearing by an accredited representative. The representative and the Veterans Law Judge asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability was related to her service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was also provided with VA examinations in August 2015 (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded his opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to her headaches, the Board notes that the Veteran submitted a statement in September 2015 asserting that the August 2015 VA examiner failed to correctly report her statements during the examination. Specifically, the examiner reported that the Veteran stated her migraines were not aggravated during service, while the Veteran maintains that she never made such a statement and that her migraines were in fact aggravated by her active duty. The Board finds that, based on the evidence of record, the Veteran's statements throughout the appeal have varied in consistency and credibility. Specifically, until her September 2015 statement, the Veteran has been vague in her claims of service aggravating her migraines and the Board finds it likely that the August 2015 VA examiner adequately reported her assertions during the VA exam. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Entitlement to Service Connection for Migraines The Board notes that the Veteran claimed service connection for her migraines in March 2001, asserting that her migraines began before service but that they were aggravated throughout service and thus she is entitled to service connection. The RO denied her claim in a December 2002 rating decision, which the Veteran did not appeal. After the submission of official service department records, the Veteran's claim is being reconsidered. VA regulations provide, in pertinent part, that a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137. The presumption of soundness applies when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48, 5 (2012). Under the presumption of soundness, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. Here, the Board notes that the Veteran is presumed sound, as her enlistment documents fail to note of any migraine disability. Though a 1981 report of medical history shows that the Veteran experienced a history of migraines, no defect was noted on the examination report at the time of the examination, acceptance and enrollment. As migraines were not noted at entry, the Veteran is presumed sound with regard to any and all conditions. To rebut the presumption of soundness, VA must show (1) that clear and unmistakable evidence shows that the Veteran's headaches preexisted service; and (2) that clear and unmistakable evidence shows that her headaches were not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Turning to the first prong, the Veteran has repeatedly asserted that she had experienced migraine headaches since intermediate school. For example, at an August 2008 DRO hearing, the Veteran testified that she had experienced headaches since middle school. In other words, the headaches clearly existed prior to her military service. She also made this assertion to a VA examiner in 2015. Although she has since disputed the examiner's recording of what she allegedly said, she did not dispute the fact that her headaches had pre-existed service. Additionally, a 1981 medical record noted that the Veteran had a history of migraine headaches. As a lay person, the Veteran is competent to report what comes to her through her senses. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While she might not have the medical training to diagnose a headache disorder, the Veteran is considered competent to report when her head hurts or aches. As such, given the Veteran's consistent reports that she had experienced headaches prior to service, the Board finds that the first prong of the presumption of soundness has been rebutted. The second prong requires a showing that the Veteran's pre-existing headache condition clearly and unmistakably did not permanently worsen during her military service. In this case, the Veteran's service treatment records are completely silent for any complaints of, treatment for, or diagnosis of migraines. It was noted that the Veteran had a history of migraine headaches, but no suggestion that such had been a problem during service. The Veteran did report receiving medication for headaches during service. However, treatment alone does not establish a worsening, as it does not show an increase in frequency or severity of the condition. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, there is no suggestion that any underlying disability was permanently worsened. In fact, the Veteran's separation examination makes no notation of any neurological problems or migraines. The Veteran has given testimony and written statements regarding her headaches. At an August 2008 DRO hearing, the Veteran was asked if her headaches had worsened in service, to which she responded that they never got better in service. Such a statement simply does not suggest worsening. In November 2009, she stated that training in the Marines had aggravated her headaches, but she gave no indication how. That is, she did not suggest that the headaches had increased in frequency or severity. In September 2015, the Veteran again suggested that training had worsened her headache condition. Given her assertion of worsening, the Veteran was afforded a VA examination for her migraines in August 2015. At that examination she reported that she had developed migraines in intermediate school. The examiner reported that according to the Veteran the frequency and intensity of her migraines did not change when she was in the Marines. The examiner noted that the Veteran's headache pain was controlled with oxycodone. At the time of the examination the Veteran reported experiencing headache pain which was pulsing and throbbing on both sides of her head. She noted that she had sensitivity to light, changes in vision and headaches that were prostrating in nature. The examiner acknowledged the Veteran's reports that her migraines began prior to service, but found based on the Veteran's own statements in-service occurrence or aggravation of her headaches did not occur. The examiner concluded that having reviewed the Veteran's service treatment records, treatment records and examined her, the Veteran's migraine headaches clearly and unmistakably were not aggravated beyond their natural progression by an in-service injury, event or illness. This medical opinion was supported by the evidence of record, and has not been challenged by any other medical professional. The Veteran has argued that she did not tell the examiner that her headaches had not increased in severity or frequency, but the fact remains that she had previously made just such a statement under oath at her DRO hearing. To this end, as finder of fact, the Board must determine, both the weight and credibility of all the evidence of record. Equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In weighing credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Here, the Veteran has reported on multiple occasions, including while under oath, that her headaches did not worsen during service. On other occasions she as argued that they had, and denied ever stating that they had not. This inconsistency, and the fact that a transcript clearly shows her statement that the headaches did not worsen, undermines the credibility of any current assertion of worsening. Moreover, the absence of any treatment for headaches in the evidence of record and the fact that the Veteran's separation physical made no mention of any migraine headache disorder also weighs against her current contentions. As such, the Veteran's statements are not found sufficiently credible to establish a worsening of her headaches during active duty, and her statements to that effect are afforded no weight. Having considered the evidence of record as a whole, the Board concludes that the weight of the evidence makes it clear and unmistakable that the Veteran's pre-existing headache condition was not aggravated by her military service. As such, the presumption of soundness has been rebutted, and the Veteran's claim is denied. Entitlement to Service Connection for a Neck Disability, to Include as Secondary to a Back Disability In March 2006, the Veteran submitted a claim seeking service connection for a neck disability. The Board denied the Veteran's claim in a February 2007 rating decision and the Veteran perfected an appeal as to this issue. As discussed above, service connection requires a current disability, an inservice occurrence of disease or injury and a relationship between the two. See Shedden, supra. The Board notes that the Veteran has received a diagnosis of degenerative disease of the cervical spine in 2004. Therefore, the Veteran has a current diagnosis and meets the first element of Shedden. Turning to crucial element two, in-service incurrence of an injury or disease, to the extent that the Veteran has generally, by virtue of filing a claim for service connection, contended that her neck disability is related to her military service. However, for the reasons provided below, the Board finds that the competent and probative evidence of record outweighs these contentions. Having reviewed the evidence of record, there exists minimal probative evidence that the Veteran's neck disability began during or was otherwise caused by her service. The Veteran's service treatment records (STRs) do not reflect any complaints of neck pain during service and there were no findings of neck abnormalities or problems at the Veteran's separation examination. Moreover, there is no record of any post service treatment or complaints of this disability until, according to the record, 2004, more than 20 years after the Veteran's service. With regard to a nexus, the Board acknowledges the Veteran's statement asserting a relationship between her service and her neck disability. Unfortunately, her assertion does not serve as a competent nexus. The Board notes that the ability to render an opinion on such condition requires specific medical training in the field of orthopedics and is beyond the competency of the Veteran. Accordingly, the lay statement offered by the Veteran is not competent evidence of a nexus and the Veteran has presented no clinical evidence of a nexus between her neck disability and her service. See 38 C.F.R. § 3.159(a)(1). Accordingly, the Veteran's claim for direct service connection fails on these bases and the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a neck disability. The Board notes that the Veteran has claimed that her neck condition is secondary to her back disability. However, because the Veteran is not service connected for her low back, secondary service connection is not warranted as a matter of law. law. 38 C.F.R. § 3.310. The Board finds no evidence linking the Veteran's neck condition to her service, and service connection must therefore be denied. ORDER Service connection for migraines is denied. Service connection for a neck disability, including as secondary to a back disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs