Citation Nr: 1620186 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 14-41 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for headaches as secondary to posttraumatic stress disorder (PTSD) with secondary depression and cannabis abuse. 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD with secondary depression and cannabis abuse. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: John R. Worman, Attorney-at-Law ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from January 1968 to November 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The record in this case includes evidence that the Veteran is not employable due, at least in part, to the service-connected PTSD. See, e.g., December 2013 PTSD Questionnaire. Accordingly, the issue of entitlement to a TDIU has been raised by the record, and is properly before the Board at this time as part of the Veteran's claim for an increased initial rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an evaluation in excess of 50 percent for PTSD and entitlement to a TDIU rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Headaches did not have their clinical onset in service, were not exhibited within the first post-service year, and are not otherwise related to active duty. 2. Headaches are not caused or aggravated by the service-connected PTSD. CONCLUSION OF LAW Headaches were not incurred in or aggravated by the Veteran's active duty military service, and are not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, VA must notify the claimant that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. Ap. 473 (2006). A pre-decisional notice letter dated in December 2011 complied with VA's duty to notify. Specifically, the letter apprised the Veteran of the evidentiary requirements for service connection on direct and secondary bases, the division of responsibility between the Veteran and VA with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned. Thus, the duty to notify is met. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, as well as VA treatment records in furtherance of his claim. The Board acknowledges that development in regard to the Veteran's increased rating claim includes the association of additional VA treatment records. The material question involved in the issue being decided herein is nexus. Thus, the Board declines delaying adjudication of this issue because there is sufficient evidence of record to decide the claim. In this regard, the Board notes that the Veteran was afforded a VA headache examination in May 2012 to address the Veteran's main contention concerning service connection (i.e., that his headaches are secondary to service-connected PTSD). 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). As noted below, the Board finds that the May 2012 examination is sufficient in addressing the Veteran's contentions of secondary entitlement to service connection for headaches. The indicated examination and opinion above are sufficient as they are predicated on consideration of the VA treatment records and STRs in the Veteran's claims file, as well, as specific examination findings. The examiner considered the Veteran's statements concerning onset, and provided a rationale for the findings made. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service connection, generally In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain specified chronic diseases, such as migraine headaches (as an organic disease of the nervous system), may be established on a presumptive basis by showing that such disease 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. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a)(2015). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b)(West 2014); 38 C.F.R. § 3.102 (2015). Factual Background and Analysis The Veteran contends that his headaches are secondary to service-connected PTSD. At the outset, the Board notes that the Veteran has not asserted, and, as explained below, the record does not otherwise suggest that the current headache disorder is directly related to service. In this case, on his January 1968 entrance Report of Medical History, the Veteran reported headaches associated with, or relieved by eyeglasses. The contemporaneous Report of Medical Examination notes a normal clinical evaluation of the head, eyes, and neurologic systems. Service treatment records contain no other complaints, treatment, or diagnoses pertaining to headaches. Separation examination noted a normal clinical evaluation of the head and neurologic system. Following service, a December 2001 VA treatment note shows a history of cluster headaches for the last 10 years. VA treatment records dated from 2001 to 2012 reflect ongoing treatment for, and complaints of cluster headaches. The Veteran underwent a VA headache examination in May 2012. At that time, the Veteran gave a history of onset of cluster headaches starting about 20 years ago. The VA examiner reviewed the Veteran's claims file and opined that the currently diagnosed headache condition (i.e., cluster and migraine headaches) was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected PTSD. The examiner specifically reasoned that there was no medical evidence linking cluster or migraine headaches as an aggravating factor or due to the result of PTSD. The Board finds that entitlement to service connection for headaches has not been established on any basis. As to service connection on a direct incurrence/aggravation basis, although the Veteran noted on his entrance report of medical history that he had "frequent or severe headache[s]," a headache disability was not noted on contemporaneous objective examination. Thus, the Veteran is presumed sound with respect to headaches on his entrance into service. The remaining STRs are silent as to any diagnosis, complaints, or treatment for headaches thereafter. Again, the Veteran has never asserted, and the evidence does not otherwise show continuity of headache symptomatology since service, or that a headache disability manifested to a compensable degree within one year following discharge from service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker, supra. In this regard, post-service evidence of headache complaints and/or diagnoses is not shown until 2001, at which time the Veteran reported a 10-year history of headaches, i.e., more than two decades years after the Veteran's separation from service. See VA Treatment Records; see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service). Likewise, during the May 2012 VA examination, the Veteran himself endorsed an onset of headaches of only 20 years prior (i.e., approximately 1992, which is still more than two decades following separation from service). As to service connection on a secondary basis, the medical evidence of record demonstrates no relationship between the Veteran's headaches and his service-connected PTSD. In this regard, the Board notes that the May 2012 VA examination report and negative opinion were based on review of the Veteran's medical history, as well as, interview and physical examination of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000)(holding when assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered and the opinion is considered probative if it is definitive and supported by detailed rationale.). There are no medical opinions of record to the contrary. Therefore, the Board gives significant probative value to the May 2012 VA opinion. As explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his headache claim. He has not done so. See 38 U.S.C.A. § 5107(a)(West 2014) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the May 2012 medical opinion stands unchallenged as competent medical evidence on the crucial questions of causation/aggravation. In this regard, the Board acknowledges the Veteran's contentions that his headaches are related to his service-connected PTSD. However, he is not competent to attest to such an etiological link as headaches may be due to different causes therefor warranting medical expertise to resolve. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Indeed, no medical professional has opined that the Veteran's headaches are somehow related to his service-connected PTSD. As such, the weight of the probative evidence- namely, the May 2012 examiner's opinion- is against a finding the headaches are secondary to service-connected PTSD. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Based on this evidentiary posture, especially the uncontradicted medical opinion evidence, the Board concludes that the preponderance of the evidence is against the Veteran's claim. The Veteran's claim of entitlement to service connection for headaches on direct and secondary bases is denied. 38 U.S.C.A §5107 (West 2014). ORDER Entitlement to service connection for headaches, including as secondary to service-connected PTSD is denied. REMAND The Veteran seeks a higher initial rating for PTSD with secondary cannabis abuse and depression; it is currently rated as 50 percent disabling, effective September 7, 2011. As an initial matter, the Veteran was last afforded a VA mental examination in January 2012. At that time, the Veteran was noted as having occupational and social impairment with reduced reliability and productivity; he was also employed as a salesman on a full-time basis. Since the time of the January 2012 VA examination, additional lay statements and medical evidence have been added to the record, including a letter from the Veteran's former employer (note: the Veteran is no longer employed), a December 2013 Defined Benefits Questionnaire completed by a private examiner (noting occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood), and a June 2015 letter/evaluation from a vocational consultant - all of which suggest a material change in the Veteran's PTSD symptoms since the time of the 2012 VA mental examination. In light of the evidence showing that the Veteran's PTSD may have undergone a material change since he was last provided a VA examination, a new VA examination is required so that the current nature and severity of his service-connected disability may be determined. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the medical evidence reflects that the Veteran receives ongoing mental health treatment for his PTSD from VA (see, e.g., December 2013 DBQ report noting bi-monthly visits with a VA psychiatrist and appointments with a VA psychologist every 6 weeks). VA treatment records contained in the electronic claims file are only current through August 2012. Further, the Statement of the Case reflects that additional treatment records from VA Medical Center Palo Alto, including VA Clinic Fremont, dated September 2012 to October 2014, were reviewed. However, those records are not part of the current electronic record. Accordingly, all outstanding records of VA treatment pertaining to PTSD, dated from August 2012 to the present, should be obtained and associated with the electronic claims file upon remand. See 38 U.S.C.A. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, the Board acknowledges that the Veteran's representative/attorney has raised the issue of unemployability in connection with his PTSD initial rating claim. See Rice, supra. The claim for the awarding of a TDIU is part of the claim for a higher rating stemming from an initial rating and as such, a determination must also be made with respect to this claim but by the RO in the first instance. On remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain all outstanding VA treatment records relevant to the Veteran's claims, to include mental health treatment records dating from August 2012 through the present, and associate the records with the electronic claims file. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate professional to determine the extent and severity of his PTSD with secondary cannabis abuse and depression. The entire claims file, including any electronic records, must be reviewed by the examiner. All signs and symptoms of the service-connected PTSD must be reported in detail. The examination report must include a complete rationale for all opinions expressed. 4. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his attorney have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs