Citation Nr: 1645017	
Decision Date: 11/30/16    Archive Date: 12/09/16

DOCKET NO.  08-21 757	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder other than post-traumatic stress disorder (PTSD).

2. Entitlement to service connection for migraine headaches.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1994 to November 1997.

These matters come before the Board of Veterans' appeals (Board) from an August 2010 rating decision from the RO in Louisville, Kentucky. Jurisdiction of the Veteran's claims file rests with the RO in Montgomery, Alabama.

The Veteran testified at a hearing before the undersigned at a June 2012 Travel Board hearing sitting at the RO in Montgomery, Alabama. A transcript of the hearing is associated with the claims file.

In September 2012 and February 2016 the Board remanded the issue of entitlement to service connection for migraine headaches to the Agency of Original Jurisdiction (AOJ) for additional development. As will be discussed below, the Board finds that there has been substantial compliance with the Remand directives, and the matter is now appropriately before the Board. See Stegall v. West, 11 Vet App 268 (1998). 

The Board also previously remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder. However, since the February 2016 Remand, the RO has granted service connection for PTSD. Therefore, to this extent, the issue of entitlement to service connection for PTSD has been granted in full. However, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD has not been granted in full, and therefore, remains before the Board on appeal as reflected on the cover page of this Decision.

Additionally, the Board notes that since the February 2016 Board Decision and Remand, the United States Court of Appeals for Veterans Claims (Court) has granted the parties' joint motion for partial remand concerning the issue of entitlement to an increased rating greater than 10 percent prior to May 15, 2008, and from December 1, 2008, for chronic left knee strain. This issue will be addressed by the Board in a separate decision.

The record before the Board consists of the Veteran's electronic record known as Virtual VA/VBMS.

The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The probative evidence of record does not relate a diagnosed migraine headache disorder to the Veteran's military service.


CONCLUSION OF LAW

The criteria for service connection for a migraine headache disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The development of the Veteran's claim has been consistent with the provisions of the VCAA and implementing regulation. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Under the VCAA, VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA is required to notify the claimant and the claimant's representative, if any, of any information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, VA is to specifically inform the claimant and the claimant's representative, if any, of any portion of the evidence that is to be provided by the claimant and any part that VA will attempt to obtain on behalf of the claimant. Notice to a claimant must be provided when, or immediately after, VA receives a complete or substantially complete application for VA-administered benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (applying 38 U.S.C.A. § 5103(a)). The record indicates that the originating agency provided the Veteran with VCAA notice by a letter in September 2009.

The VCAA also defines VA's duty to assist a claimant in the development of his or her claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2014). VA must help a claimant obtain evidence necessary to substantiate a claim, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. The required assistance includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board finds that all available, relevant evidence necessary to decide the issue on appeal has been identified and obtained. The evidence of record includes statements of the Veteran, VA treatment records, VA medical examination reports, service personnel records, and service treatment records. Although the RO in the August 2010 rating decision notes a December 2009 VA examination that is not of record, as will be discussed further below, the RO has sufficiently attempted to obtain such examination report. Instead, the RO has provided documentation that the Veteran was not scheduled for a neurological examination in December 2009, the Veteran was notified that the examination report was not of record, and the Veteran responded that he had no other information or evidence to give VA to support his claim. Therefore, the Board finds that no relevant and available records remain outstanding.

Moreover, the Veteran underwent a VA examination in March 2016. The Board finds the March 2016 examination and opinion to be adequate because the examiner addressed the Veteran's contentions, reviewed the Veteran's claims folder, took note of the Veteran's history, and evaluated the Veteran's current condition. The Veteran has not asserted that the VA examination was inadequate in any way.

Therefore, the Board finds that VA has met its duties to assist and notify the Veteran.

II. Stegall Compliance 

As noted in the Introduction, in September 2012 and February 2016 the Board remanded this matter for additional development. The Board finds that its September 2012 and February 2016 Remand instructions have been substantially complied with. See Stegall, 11 Vet. App. at 271 (holding that the Board errs as a matter of law by failing to ensure compliance with its remand orders). 

The Board's September 2012 Remand specifically directed the RO to associate with the claims file the December 2009 neurological examination as mentioned by the RO in the August 2010 rating decision. Accordingly, the RO associated with the claims file a VA record indicating that the Veteran did not undergo a December 2009 neurological examination. Moreover, in an October 2012 development letter, the Veteran was informed that there is no record of a December 2009 VA neurological examination, and if the Veteran was seen in December 2009 for a neurological examination, the VA requested that he notify the RO and provide any documentation he has available. However, in a July 2010 the Veteran responded that he had no other information or evidence to give VA to support his claim.

In February 2016, the Board remanded the matter for a VA examination to determine the etiology of the Veteran's headache disability. As a result, the Veteran was afforded a VA examination in March 2016. As noted above, the Board finds the March 2016 examination and opinion to be adequate because the examiner addressed the Veteran's contentions, reviewed the Veteran's claims folder, took note of the Veteran's history, and evaluated the Veteran's current condition. The Veteran has not asserted that the VA examination was inadequate in any way.

Therefore, the Board finds that its Remand directives have been satisfied, and the matter is now appropriately returned to the Board.

III. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Regulations provide that 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 prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent 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 Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). 

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown in service or within the presumptive period under § 3.307 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). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). However, migraine headaches are not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) for this claim does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013);

In determining whether service connection is warranted for a disability, VA must 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

In this case, the Veteran's July 1994 enlistment examination is silent for any history or complaints of headaches or migraines. However, a November 1994 service treatment record indicates a complaint of and treatment for a headache and sore throat. 

At the June 2012 Travel Board hearing, the Veteran testified that he started to have migraine headaches while he was in basic training. He asserted that he went to sick call with a headache after he threw up during basic training. However, the Veteran explained that they attributed his symptoms to a cold or bronchitis. The Veteran further testified that he currently receives VA treatment for his migraine headaches.

Post-service VA treatment records note complaints of and treatment for migraine headaches. See November 2013, November 2012, July 2011, April 2011; February 2011, January 2011, November 2010, September 2010, July 2010, January 2010, December 2009, May 2009, and April 2009 VA treatment records. July 2011 and February 2011 VA treatment records indicate complaints of recurrent headaches for the last 4 years. January 2011 VA treatment records note migraines with blurred vision, and a November 2010 VA treatment record indicates a migraine of 4 days with severe symptoms rated at the pain level of 10 on a scale of 1 to 10. The November 2010 VA treatment record reported that the Veteran's migraine symptoms included blurry vision, diarrhea, dizziness, and intermittent episodes of urinary incontinence. A May 2009 VA treatment record notes "headaches about twice a month that [the Veteran] has to sleep through."

The Veteran was afforded a VA examination in March 2016. The examiner reviewed the Veteran's entire claims file and examined the Veteran in person. The examiner noted the Veteran's diagnosis of migraine including migraine variants, with a diagnosis date of 2009, and reported the following symptoms: migraine headaches all over with throbbing pain like a heartbeat and sensitivity to light, sound, smells. The Veteran stated that he gets migraines 2 times a month that last up to a day in length and that he gets milder tension-type headaches once a week that are not debilitating.

Given the evidence of record, the Veteran has a current diagnosis of migraine headaches, and therefore the first element of service connection is met. The evidence also shows that in November 1994 the Veteran complained of and received treatment for a headache in service, and therefore an in-service event, injury, or disease has been established. The dispositive issue in this case is, therefore, the presence of a nexus between the Veteran's active duty service and his current disability.

As to the issue of nexus, the March 2016 VA examiner reviewed the claims file and interviewed of the Veteran, and opined that "the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The VA examiner provided the following rationale: 

"The Veteran's history is not reliable for determining the onset of his migraine headaches. The only documentation of migraines dating back to 1990 is isolated and is directly refuted by the Veteran's entrance physical which specifically documents no severe or frequent headaches. The first objective documentation and evidence of a chronic migraine headache disability is in 2009.While the Veteran reports he occasionally had some milder non-limiting headaches in the past, these were consistent with tension headaches and are not consistent with his migraine headaches. Mild tension-type headaches which are due to mild muscular tightness in the head and neck are experienced by over 80% of the population and are not a precursor to migraines which are actually due to pain originating in the brain itself. Based on the objective data, the veteran's current headache disorder of migraine headaches did not start until 2009."

Therefore, the VA examiner noted the Veteran's assertions of migraines in service and reviewed the Veteran's service treatment record, to include the November 1994 sick call notation, and opined that the Veteran's current migraine headache disability was not incurred in or otherwise related to the Veteran's service.

Thus, after a full review of the record in conjunction with the applicable laws and regulations, the Board finds that the claim must be denied. The Board finds the March 2016 VA examiner's opinion to be of great probative value because the conclusion is supported by a medical rationale and is consistent with the verifiable facts regarding the Veteran's contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). 

Although the Veteran states that he was treated for a migraine headache in service and that his headaches persisted post-service, the Board finds the Veteran's lay representations of limited probative value. While the Veteran's statements are competent to the extent that he has indicated persistent headaches since service, the Veteran is not competent to opine as to the presence of a causal relationship between his active duty service and his current disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the examiner has distinguished the Veteran's isolated headaches from his post-service chronic migraine headaches. Additionally, the Board notes that although service treatment records indicate a specific instance of a headache in service in November 1994, post-service treatment records are silent as to any complaints of headaches until 2009, nearly 15 years after the Veteran left service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis, which weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). 

In sum, the Board finds that the Veteran has a current disability of migraine headaches and that there was an in-service occurrence noted in the Veteran's November 1994 service treatment record, but that the nexus element of service connection for migraine headaches has not been met. Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53.


ORDER

Entitlement to service connection for migraine headaches is denied.


REMAND

As noted in the Introduction, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is still before the Board for appellate consideration. 

The Veteran contends that his psychiatric problems developed due to harassment in service as a result of his race. Additionally, the Veteran has identified stressors in service, to include fear of hostile military or terrorist activity while serving in Bosnia. The Veteran asserts that he was a vehicle mechanic in Bosnia and that he saw dismembered civilians who survived land mines, and that he feared the threat of the mines. 

After a review of the record, the Board finds that the directives of the September 2012 Remand have not been substantially complied with and remands this matter for an addendum opinion. See Stegall, 11 Vet App at 268.

The September 2012 Remand instructed the RO to schedule a VA psychiatric examination and, after a review of the claims file and an examination of the Veteran, the examiner was directed to document any current psychiatric disabilities and render an opinion as to whether it is at least as likely as not that any currently existing psychiatric disability had its onset during military service or is otherwise related to military service. While the February 2015 VA examination found a diagnosis of schizoaffective disorder, the examiner did not opine as to the etiology of this diagnosed disorder.

Additionally, the September 2012 Remand directed the VA examiner to consider and reconcile the April 2009 and the November 2011 VA examiner's opinions. The June 2009 VA examiner concluded that it was as likely as not that the Veteran's schizoaffective disorder began during his military service, supporting his opinion with the rationale that the probability that the Veteran first experienced thought symptoms during service was quite high because the average age of onset for thought disorders among males is 18 to 20 years old. However, the November 2011 examiner concluded that "[w]hile I certainly agree with [the June 2009 VA examiner's] opinion, there is no evidence in the claims folder that supports the conclusion that the patient has symptoms of schizoaffective disorder or schizophrenia while in the service. Therefore, based upon this review of the C-file, I do not find that the patient's schizoaffective disorder is related to or caused by his military experience." Given that no opinion as to the etiology of the Veteran's schizoaffective disorder was provided on remand, the Board once again directs the VA examiner to provide such opinion and to consider and reconcile the April 2009 and November 2011 VA examiners' opinions.

Accordingly, the case is REMANDED for the following action:

1. Obtain any ongoing and relevant VA or private treatment records. Should such records exist, associate them with the Veteran's electronic claims file.

2. After undertaking the development listed above to the extent possible, obtain an addendum opinion from the examiner who provided the February 2015 VA examination, or another appropriate medical physician if the examiner is unavailable. The claims file, to include this Remand and the June 2012 Travel Board hearing transcript, must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. 

After reviewing the claims file, the reviewer should answer the following questions: 

(a) Diagnose all current psychiatric disabilities (apart from PTSD) and provide a full multi-axial diagnosis. 

For any diagnosed acquired psychiatric disorder, to the extent possible, differentiate between the symptoms attributable to each.

(b) For each diagnosis, discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disability apart from PTSD, was caused or aggravated by the Veteran's period of active service, or whether it at least as likely as not, had its onset during service. 

A complete explanation must be provided for all opinions. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it.

In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's assertions, to include his asserted harassment in service as a result of his race and to include fear of hostile military or terrorist activity while serving in Bosnia. See June 2012 Travel Board hearing transcript; February 2015 VA examination.

Also in rendering the requested opinion, the examiner to consider and reconcile the April 2009 VA examiner's opinion and the November 2011 VA opinion.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board.



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).



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs