Citation Nr: 1756497 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-07 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for headaches, to include migraines. 2. Entitlement to service connection for lumbar spine degenerative disc disease, to include herniated discs and chronic back pain. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to October 1984 and from November 1986 to September 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, among other things, denied service connection for migraine headaches and denied service connection for degenerative disc disease. In addition, the RO had also indicated it would not be taking separate issue with the Veteran's TDIU claim because, based on the 100 percent evaluation assigned for another disability (posttraumatic stress disorder (PTSD)), the Veteran was already considered totally disabled. The Veteran timely appealed. FINDINGS OF FACT 1. The Veteran has a current diagnosis of headaches, but this diagnosis has not been shown to be linked to service. 2. The Veteran has a current diagnosis of lumbar spine degenerative disc disease, but this diagnosis has not been shown to be linked to service. 3. The Veteran was assigned a 100 percent rating for another disability (PTSD); the Veteran's other service-connected disabilities do not combine to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for an award of a total disability rating based on individual unemployability due to service-connected disabilities other than PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340 , 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 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. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO sent correspondence throughout the appeals process, but specifically in January 2013 and March 2013, that informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letters informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notice provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims, with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record contains the Veteran's service treatment records, lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. Also of record are VA examinations conducted in August 2013 and September 2013 concerning the Veteran's claimed headaches and degenerative disc disease. In light of the foregoing, the Board concludes that the VA's duties to the Veteran have been fulfilled as to the issues decided herein. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria & Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). In some cases, lay evidence will be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In Jandreau, the United States Court of Appeals for the Federal Circuit stated that a layperson can identify a simple condition like a broken leg, but not a form of cancer. 492 F.3d at 1377, n. 4. Lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (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. Jandreau, 492 F.3d at 1377. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that varicose veins is a disability that is unique and readily identifiable). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). See also 38 C.F.R. § 3.159(a)(2) (2017) (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). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by an appellant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted by or on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran contends that as a result of his military service, he has headaches, and lumbar spine degenerative disc disease. In addition, the Veteran claims TDIU. Each of these issues on appeal is addressed individually below. Headaches Service treatment records reflect the Veteran complained of headaches on occasion. A July 1987 record reflects the Veteran complained of headaches, back pain, and other symptoms, and was diagnosed with the flu. A March 30, 1989 record reflects the Veteran complained of headaches and was diagnosed with an upper respiratory infection. A September 1986 re-enlistment exam reflects the Veteran had no complaints of headaches or recurrent back pain in the Report of Medical History. A May 1989 separation exam reflects the Veteran complained of headaches almost daily in the Report of Medical History; however, the Report of Medical Examination is silent as to any headache condition or diagnosis. After service, the Veteran obtained medical care at the Oklahoma City VAMC. These records do not reflect the Veteran sought treatment for headaches. Private treatment records from Integris Health are associated with the Veteran's claims file. A September 2012 record reflects the Veteran had no complaints of migraine headaches. A November 2012 record reflects the Veteran complained of weekly headaches, that have been worsening in severity, and that were relieved by taking two Aleve. The Veteran was diagnosed with migraine headaches, and it was recommended the Veteran continue to take Aleve for pain relief. Progress notes from the Veteran's counseling sessions from October 2012 to December 2012 are also associated with the Veteran's claims file. An October 2012 note reflects the Veteran reported having several migraines over the past week, that he took two Aleve and it relieved the migraines, and that the counselor found this to be very positive since the Veteran does not usually take medication for his migraines. A Disability Benefits Questionnaire (DBQ) for headaches (including migraine headaches) was completed by a physician in March 2013. The examiner reports that the Veteran had been diagnosed with a headache condition, and that the Veteran reported the following medical history: ongoing migraine and tension headaches since 1982; he first started having headache problems in the Army in 1982, stemming from photo sensitivity; sunglasses were not allowed while in uniform and he worked in a Motorpool with many acres of light colored concrete; he was constantly effected by bright light which included "snow blindness" and immediate intense headaches; he continues to suffer pain; and medications have no positive effect. The examiner did not provide a nexus opinion as to whether the headache condition was incurred in or caused by the Veteran's military service. In September 2013, an addendum DBQ medical opinion was requested in order to address the Veteran's claim that his headaches were incurred in or caused by his complaints of headaches in military service. After review of the Veteran's VA claim file, including service treatment records, the March 2013 DBQ for headaches, and treatment records from Amarillo and OKC VAMCs, the examiner opined that it was "less likely than not" the claimed condition was related to the Veteran's military service. As rationale, the examiner stated that after a review of medical records, the headaches noted in the service treatment records were all symptoms of other diagnosed medical conditions, including gastroenteritis, upper respiratory infections, or other conditions. In addition, the examiner noted that on the Separation Exam, the Veteran marked an "X" on many symptoms and complaints that included headaches, but that the history provided by the Veteran is inconsistent with the service treatment records (STRs), and not addressed with merit by the clinician evaluating the Veteran prior to discharge. The examiner also noted that the history of headaches that the Veteran provided to his private physicians since discharge from service is inconsistent with the history of any documented headaches in the service treatment records. Lastly, the examiner noted that the Amarillo and OKC VAMCs do not include a diagnosis of headaches, nor headaches post service, nor headaches associated with military service. The Board finds that upon review and consideration of the Veteran's service treatment records, post service treatment records, the March 2013 DBQ, and the September 2013 DBQ Addendum, the Veteran has a current diagnosis of headaches, but this diagnosis has not been shown to be linked to service. In this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's current headache condition to service. The Board has considered the statements of the Veteran, and the Veteran's spouse, asserting that his headache condition is related to service. However, the Board finds that the Veteran is not competent to render such an opinion. Although he is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and that is within the realm of his personal knowledge, he is not competent to establish the etiology of his headache condition, as that would require specialized knowledge or training, such as medical expertise, which he is not shown to have. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Whether the Veteran's headache condition is related to service is a complex question not subject to lay opinion evidence. Since service connection requires medical evidence of a nexus between the current disability and an in-service disease or injury, his claim for service connection for headaches must be denied. Lower back pain Service treatment records are associated with the Veteran's claims file. A July 1987 record reflects the Veteran complained of headaches, back pain, and other symptoms, and was diagnosed with the flu. A September 1986 re-enlistment exam reflects the Veteran had no complaints of recurrent back pain in the Report of Medical History. A November 1987 record reflects the Veteran complained of lower back pain, stating he injured himself while lifting a garbage can. A May 1989 separation exam reflects the Veteran complained of back pain in the Report of Medical History, but the Report of Medical Examination is silent as to any diagnoses for a lower back or spine condition. Private medical records from a Family Practice physician are associated with the Veteran's claims file. A November 2004 record reflects the Veteran complained of acute back pain that was ongoing for about five days, and that he had a history of back problems in the past, but none recent. The physician treated the pain with an injection of medication into the Veteran's back. Medical records reflect the Veteran sought medical treatment for lower back pain at the Oklahoma City VAMC. A May 2006 record reflects the Veteran complained of lower back pain, that onset of pain was years ago, and that the pain is constant. Medical records obtained from the Social Security Administration (SSA) reflect an evaluation of the Veteran was conducted in November 2006; that the Veteran had a diagnosis of lumbar DDD with HNP L4-5, L5-S1 disc protusion; and, that after a serious of other procedures related to other ailments, the Veteran reported "no more back pain" and was released to full activity. An October 2010 medical record reflects the Veteran was diagnosed with low back pain and sent for imaging. An October 2012 medical record reflects the Veteran reported symptoms of constant back pain due to herniated discs in lower back due to military duty. A November 2012 medical record reflects the Veteran reported that he had an injection in his lower back and is no longer in pain. Private medical records from Integris Spine and Neurology Surgery are associated with the Veteran's claims file. A January 2013 record reflects the Veteran had an office visit to review the results of an October 2012 CT of his lumbar spine. The lumbar spine exhibited no abnormalities, was normal in appearance, and a straight-leg raising test was negative. The examiner diagnosed the Veteran with mild disc degeneration and recommended physical therapy. A March 2013 record reflects the Veteran reported his back issues were caused by motor vehicle accident (MVA) in 1982 while in service. Private medical records from the Miami Physician's Clinic are associated with the Veteran's claims file. A November 2012 record reflects the Veteran reported a history of chronic back pain with radiating symptoms into the left lower extremity. The examiner diagnosed the Veteran with "degenerative and hypertrophic changes in the mid and lower lumbar spine produce multilevel mild central stenosis." A Disability Benefits Questionnaire (DBQ) for back (thoracolumbar spine) conditions was completed by a physician in March 2013. The examiner reports that the Veteran had been diagnosed with lumbago, lumbar disc degeneration, and lumbar radiculopathy. In addition, the examiner noted the Veteran had IVDS of the thoracolumbar spine with incapacitating episodes over the past 12 months that were at least 6 weeks of duration. The examiner noted the Veteran reported the following medical history: back and left leg pain after rear-end motor vehicle accident while in Army on active duty in 1982. The examiner indicated diagnostic testing showed minimal degenerative spondylosis and degenerative disk calcification at L5-S1. The examiner did provide a nexus opinion as to whether the Veteran's lower back condition was incurred in or caused by the Veteran's military service. The examiner opined that it is "less likely than not" the Veteran's degenerative disc disease, to include herniated disc and chronic back pain, was incurred in or caused by complaints of low back pain in service. As rationale, the examiner stated there were two times the Veteran injured the back while in service, in 1987 and 1989, and both of these injuries were minor and would not have progressed to what the Veteran currently has a diagnosis of the thoracic lumbar spine area. In addition, the examiner states there is conflicting evidence in the medical records based on the history given by the Veteran. The examiner notes that when the Veteran was seen at the SW Medical Center Emergency Room, he gave a history that he cannot remember any accident that may have caused his back problem except maybe bending over at work and pulling things out of cars; but when he gave the history of his low back condition to a physician (Dr. T.) he states he was walking back across a parking lot at work where he tripped over a pipe sticking out of the ground and that is when his low back and left leg began to hurt. The examiner also notes the history given by the Veteran when he was assessed at Integris Spine and Neurology Surgery Center, when he stated his low back pain was the result of a motor vehicle accident while on active duty in the Army in 1982. The Board finds that upon review and consideration of the Veteran's service treatment records, post service treatment records, and the March 2013 DBQ, the Veteran has a current diagnosis of a lower back condition, but this diagnosis has not been shown to be linked to service. In this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's current lower back condition to service. The Board has considered the statements of the Veteran, asserting that his lower back pain is related to service. However, the Board finds that the Veteran is not competent to render such an opinion. Although he is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and that is within the realm of his personal knowledge, he is not competent to establish the etiology of his lower back pain, as that would require specialized knowledge or training, such as medical expertise, which he is not shown to have. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Whether the Veteran's lower back pain is related to service is a complex question not subject to lay opinion evidence. Since service connection requires medical evidence of a nexus between the current disability and an in-service disease or injury, his claim for service connection for lower back pain must be denied. TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2017). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a). The Board further notes that the Court has held that a claim for TDIU is potentially not moot even when a schedular 100 percent disability rating has been granted. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a scheduler total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more, or is permanently housebound by reason of the Veteran's service connected disability or disabilities. See 38 U.S.C. § 1114 (s) (2012). Thus, the issue of entitlement to a TDIU for the entirety of the appellate period remains before the Board, despite the 100 percent rating assigned for the Veteran's scheduler total rating for PTSD. Here, the Veteran is service connected for the following disabilities (in addition to PTSD): cervical spine strain and cervical spine IVDS at 20 percent; radiculopathy, right upper extremity associated with cervical spine strain and cervical spine IVDS at 20 percent; left knee patellofemoral syndrome at 10 percent; and right knee patellofemoral syndrome at 10 percent. As such, the Veteran does not have an additional disability of 60 percent or more. There is no evidence of record that the Veteran is permanently housebound. Since, in this case, TDIU requires another service-connected disability to be 60 percent or more, or that the Veteran be housebound, to qualify for special monthly compensation, the Veteran's TDIU claim must be denied. ORDER Service connection for headaches, to include migraines, is denied. Service connection for lumbar spine degenerative disc disease, to include herniated discs and chronic back pain, is denied. Additional entitlement to TDIU is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs