Citation Nr: 1801305	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  12-32 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for migraines, to include as secondary to status post laceration of the left parietal area.  

2.  Entitlement to service connection for dizziness, to include as secondary to status post laceration of the left parietal area.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from June 1974 to July 1978.

These matters come before the Board of Veterans' Appeals (Board) from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  They were subsequently remanded by the Board in December 2015 for additional development, which has since been completed.  Stegall v. West, 11 Vet. App. 268 (1998).

In August 2015, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.

Two issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ): (1) Entitlement to a compensable disability rating for bilateral hearing loss (raised in a February 2016 claim); and (2) entitlement to vocational rehabilitation and employment (VRE) benefits under Chapter 31, Title 38, of the United States Code (raised in a December 2015 claim).  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The Veteran's dizziness claim is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran has been diagnosed with migraine headaches.

2.  The Veteran sustained multiple in-service head injuries and demonstrated headaches during service.

3.  The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's migraines were incurred in or are otherwise etiologically related to service, nor proximately due to or chronically aggravated by his service-connected status post laceration of the left parietal area.


CONCLUSION OF LAW

The criteria for service connection for migraines, to include as secondary to status post laceration of the left parietal area, have not been met.  38 U.S.C. §§ 1110, 1111, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is currently seeking entitlement to service connection for migraines, to include as secondary to service-connected status post laceration of the left parietal area.

Generally, service connection may be awarded upon competent evidence of: (1) The current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability.  Shedden v. Principi, 381 F.3d 1163 (2004). 

Service connection may also be established on a secondary basis upon evidence: (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) (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).

Here, the Board finds competent evidence of the claimed disability and several in-service events.  In this regard, multiple VA examiners have diagnosed the Veteran with migraine headaches, as supported by ongoing VA treatment records.  See VA examinations dated March 2009, March 2016, and July 2016; see generally VA treatment records.  Moreover, the Veteran's service treatment records (STRs) record multiple pertinent in-service injuries, to include: a February 1975 incident when the Veteran was beaten by two assailants and knocked unconscious; an August 1977 car accident when the Veteran's vehicle flipped and he sustained a laceration to his head; and a January 1978 complaint of headaches.  The Veteran has additionally provided competent and credible testimony regarding these events.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses); see also hearing transcript dated August 2015; lay statements dated January 2009 and November 2012. 

However, the Board does not find that a relationship exists between the Veteran's current disability, the in-service events, or the service-connected status post laceration of the left parietal area.

The Board is guided by several medical opinions of record in this regard.  In March 2009, a VA examiner opined that the Veteran's headaches were less likely than not caused by or the result of head trauma in service.  In doing so, the examiner noted that the Veteran did not demonstrate loss of consciousness following the in-service car accident, and that no further complaints of headaches were subsequently observed absent the January 1978 report.  Further, the Veteran's exit examination did not record a history of headaches.  Instead, the Veteran presented for treatment of headaches in August 2008, which were classified as "acute onset" at that time.  Such a classification means that the Veteran's onset suddenly, rather than in the 30+ years following the in-service incident.  

Said negative opinion was reiterated by VA examiners in March and July 2016.  Here, the March examiner opined that the Veteran's migraines were not proximately due to or the result of the status post laceration of the left parietal area.  Instead, the examiner contended that the Veteran's migraines were more likely due to his severe allergic rhinitis, depression and anxiety, and sleep impairment.  The examiner additionally concluded that the Veteran's migraines were not aggravated by his status post laceration of the left parietal area.

Similarly, the July 2016 examiner opined that it was less likely than not that the Veteran's migraines onset during service, or were caused or aggravated by his status post laceration of the left parietal area.  By way of rationale, the examiner noted that the Veteran's migraines were classified as "new onset" upon his solicitation of treatment in 2008.  

Further, minor traumatic brain injury improves with time until eventual extinction in the vast majority of cases.  Thus, it would be highly unusual that new and acute signs or symptoms would arise 30 years following the initial injuries.  Instead, the Veteran demonstrated a history of allergic rhinitis during his military service.

In assessing the causal relationship between the Veteran's migraines and his status post laceration of the left parietal area, the examiner observed that lacerations are not deep tissue repair.  Instead, they are generally superficial, as deeper wounds would cause a surgical repair.  Thus, it would be highly unusual for a laceration repair to cause deep tissue damage leading to chronic headaches.  Instead, the Veteran presents with depression, hypertension, and allergic rhinitis, all of which can cause difficulty with chronic headaches.

Taken in combination, the Board affords significant probative value to the VA examiners' opinions, which assess the nature and onset of the Veteran's migraines, his in-service history of head injuries, and the likeliest etiology of his current condition.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion").  In doing so, the Board concludes that no nexus exists between the Veteran's current disability, his military service, or his status post laceration of the left parietal area.  Coupled with the absence of a positive nexus opinion from the record, the Board thus finds that no etiological nexus exists in this case, such that service connection must be denied.

In reaching this conclusion, the Board is cognizant of the Veteran's contention that his migraines have existed since service and that a nexus is present in this case.  However, the Veteran's testimony regarding the onset of his migraines in unsupported by the competent medical evidence of record, which establishes an onset approximately 30 years following his exit from service.  Additionally, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to provide an opinion regarding the etiology of his migraines.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).  

Thus, the Board defers to the competent medical evidence of record in assessing the merits of this claim.  This does not suggest that Veteran does not have this problem, simply that the best evidence in this case (but by no means all evidence in this case) provides significant evidence against any connection between the events in service and the current problem, nothing more.   

In doing so, the Board finds that the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  Accordingly, entitlement to service connection for migraines is not warranted.  See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

VA's Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  Here, the Veteran has not raised any issues with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
 
ORDER

Entitlement to service connection for migraines, to include as secondary to status post laceration of the left parietal area, is denied.  


REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's dizziness claim.

In this regard, the Veteran's dizziness was most recently assessed during March 2016 VA examination.  At that time, the VA examiner observed that the Veteran demonstrated additional symptoms indicative of Meniere's syndrome, to include vertigo, hearing impairment, and tinnitus.  However, the VA examiner declined to assert whether the Veteran thus demonstrated an actual diagnosis of Meniere's syndrome, limiting the proffered diagnosis only to "dizziness."  

The Board finds that the examiner's failure to offer a definitive diagnosis renders the examination inadequate, particularly in light of the recent award of service connection for bilateral hearing loss and tinnitus.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall, 11 Vet. App. at 268.  Thus, a new examination is now warranted such that a definitive diagnosis may be offered in light of the Veteran's pertinent symptomatology.  

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a new VA examination to assess the nature and etiology of his dizziness.  The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

The examiner should elicit a complete history from the Veteran.  The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner must then address the following:

a. Identify whether the Veteran's dizziness may be attributed to a medical diagnosis, to include that of Meniere's syndrome.  If the examiner believes the Veteran does not demonstrate such a diagnosis, he or she should so indicate.   

b. If a diagnosis is offered, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service, to include the February 1975, August 1977, and January 1978 in-service events.

c. Further indicate whether it is at least as likely as not (50 percent probability or more) that the disability was caused or aggravated by the Veteran's status post laceration of the left parietal area or the treatment thereof.

In providing the above opinions, the examiner must explicitly account for the Veteran's competent testimony regarding his symptoms, including the onset and nature thereof.

In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

A complete rationale should be provided for any opinion or conclusion expressed.  

2.  Readjudicate the claim on appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an appropriate period for response.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs