Citation Nr: 21002453 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-13 648 DATE: January 13, 2021 ORDER Entitlement to service connection for a headache disability, including migraine headaches, is denied. Entitlement to service connection for cervical spine disability is denied. REMANDED Entitlement to service connection for multiple sclerosis is remanded. FINDINGS OF FACT 1. A headache disability, including migraines headaches, was not manifest in service and is not attributable to service. 2. A current cervical spine disability was not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a headache disability, to include migraine headaches, have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to September 1974. She served less than 90 days. In October 2015, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) videoconference hearing in Atlanta, Georgia. A transcript of the proceeding is of record. The Board remanded the issues on appeal in March 2016 and July 2020. The July 2020 remand was to obtain records from Social Security Administration. VA has since been notified the requested records have been destroyed. This constitutes compliance with the July 2020 remand directive. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include an organic disease of the nervous system and arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).  However, in this case, the Veteran is not eligible to receive the benefit of such a presumption because she did not serve for 90 days. See 38 C.F.R. § 3.307(a)(1). 1. Entitlement to service connection for a headache disability, including migraine headaches The Veteran contends that she has experienced headaches since service and therefore her current headache disability has existed since service. Upon review of the evidence of record, we find the Veteran’s contention to not be credible and service connection unwarranted. The Veteran has complained of headaches since filing her claim. The remaining question is whether the Veteran’s headache disability began in service or is otherwise related to service. The Veteran contends she had headaches in service and ever since. She testified that she sought treatment once in service for her headaches, and thereafter self-treated with over the counter medication. See October 2015 hearing transcript, pages 4-5. A review of the Veteran’s service treatment records does not reveal complaint of or treatment for “headaches”, but does reveal one complaint of the Veteran’s head hurting the day after being hit in the back and stomach while playing volleyball. See July 14, 1974 service treatment record. During her enlistment examination the Veteran checked a box indicating a history of severe or frequent headaches, but crossed it out and checked a box indicating she did not have such a history. A separation examination was not conducted. Post-service treatment records in the years immediately after separation reveal complaints of head pain and headaches, but only after suffering head or facial trauma. See treatment records from May 12, 1976 (complained of forehead pain, after head injury) and April 23, 1977 (complained of headaches since being hit in the eye with a softball the day before). She also had headache associated with a viral syndrome. See June 2, 1978 treatment record. The Veteran subsequently reported and was treated for headaches occasionally, often accompanied by abdominal pain. See, e.g., November 30, 1979 treatment record. She was eventually diagnosed as having migraines. During treatment the Veteran would sometimes note a history of headaches or migraines, but did not report that they began in service until filing her claim. See, e.g., February 21, 1990 treatment record (“She has had a history of migraine syndrome in the past.”). The Veteran attended VA headaches examination in July 2016. During the examination, the Veteran reported the in-service volleyball incident as the only trauma. She also reported episodic headaches began in service. The examiner concluded it is less likely than not that this Veteran's episodic headaches “have any connection to events or injury during her very brief period of service. She was oviously (sic) under considerable emotional stress as her enlistment was fraudulent because her child remained in her custody. They are now infrequent and non disabling.” The examiner explained the Veteran’s headaches are clearly episodic, accompanied by typical migrainous features and are relieved by sleep and prevented by cyproheptadine. “All of these features make it more likely than not that her headaches is in fact migraine. The preponderance of evidence is that migraine is a genetic disposition (even in the absence of family history) which is exacerbated by sleep deprivation and dehydration which are very common.” The examiner cited a webpage from Up-to-Date in support of this. See https://www.uptodate.com/contents/pathophysiology-clinical-manifestations-and-diagnosis-of-migraine-in-adults (last viewed December 17, 2020). The Board notes that the examiner may have concluded that the Veteran’s headaches are not related to service because they are genetic in nature. However, VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at para. 2. Therefore, the examiner erred in implying that service connection is unwarranted because the examiner believed the Veteran’s migraines are genetic in nature. The Board recognizes this may not have been what the examiner was implying and was merely relying on the Veteran’s headache’s being episodic in nature to conclude that it is less likely than not that they are related to service. Regardless, the Board need not remand for clarification or obtain a new opinion, as the opinion itself was based on incomplete information and assertions we find incredible. In other words, remand is not warranted for additional medical opinions because the crux of the Veteran’s claim, that she has had headaches since service, is not credible. The Veteran failed to report post-service traumas to the examiner, including head and facial injuries in the years immediately after separation from service. She also failed to report being involved in motor vehicle accidents, including one that led to or preceded a neck injury. See October 17, 1988 treatment record (“Involved in auto accident and says she injured her neck next week . . .”). The examiner found a reference to this accident in medical records “but details are not recounted”, suggesting the examiner overlooked the record noting this may have caused or immediately preceded a neck injury. This is relevant, as the July 2016 examiner cited a website in support of his findings. A review of this site also raises the possibility that headaches can be caused by head or neck trauma. As stated above, the Board finds the Veteran’s reports of a history of episodic headaches in and since service to be incredible. Although she reported head pain once in service, she made no further complaint, despite seeking treatment for other ailments in the days and weeks that followed. See service treatment records from July 16-17, 1974 and August 1974. A review of post-service records in the nearly 15 years following separation only occasionally show complaint of headaches. Furthermore, the first medical record noting head pain was in May 1976, nearly two years after separation from service, and this forehead pain followed a head injury. Similarly, the Veteran first reported post-service headaches a day after being hit in the eye with a softball in April 1977. In the subsequent decade, headaches were only occasionally mentioned and at no point did the Veteran indicate they began in service. Despite reporting a history of headaches to treatment providers, there is no indication she related this history back to service until after she filed her claim. Furthermore, in addition to the post-service forehead and softball (eye) injuries, the Veteran has been involved in multiple car accidents. The Veteran failed to disclose these events during her VA examination, instead only reporting the in-service volleyball trauma. This weighs against the Veterans’ credibility. Although the Veteran is competent to report having headaches in and since service, we find such reports to be incredible. In summary, the Veteran’s service treatment records do not contain complaint of or treatment for headaches and only one compliant of head pain. Moreover, despite years of seeking treatment for a variety of issues in the 1970s and 1980s, headaches were only occasionally reported and never reported as related to service or existing since service. To the contrary, headaches were not noted until the Veteran sustained facial trauma from a softball nearly three years after separation from service. Therefore, the Board finds the preponderance of the evidence of record is against finding the Veteran has had headaches in and since service. In light of this finding, the preponderance of the evidence is also against finding her current headache disability initially manifested in service. The evidence of record contains a November 2015 opinion in support of the Veteran’s claim from Dr. L.S. However, as noted in our March 2016 decision, Dr. L.S. did not provide a rationale for this opinion. Therefore, it is of little probative value. The Veteran has not provided an addendum opinion from Dr. L.S. in the years since our March 2016 decision. There are no other medical opinions supporting a nexus between service and the Veteran’s headaches. Accordingly, the Board finds the preponderance of the evidence is against finding the Veteran’s current headache disability manifested in service or is otherwise related to service. 2. Entitlement to service connection for cervical spine disability The Veteran contends her current neck pain began in service. See May 2010 examination report, page 2. Upon review of the evidence of record, the Board finds service connection for a cervical spine disability is not warranted. The Board notes, mention of the Veteran’s in-service neck rash below is for illustrative purposes. The Board denied the Veteran’s skin disorder claim in March 2016, so it will not be considered here. A review of the Veteran’s service treatment records does not reveal complaint of or treatment for cervical spine (neck) pain. The Board notes that in our March 2016 decision, we stated that the Veteran’s service treatment records refect a complaint of neck pain. Upon further review, this was a misstatement. Service treatment records show head and back pain, but not neck pain. The service treatment records also demonstrate the Veteran had a rash on her neck, but not cervical spine pain. Post-service treatment records show routine examinations that included the neck and did not demonstrate neck pain, but possibly demonstrated jugular vein distention and adenopathy, though some of the writing is illegible. However, it is clear the Veteran did not seek treatment for her neck or report neck pain for more than a decade after separation from service. Furthermore, this was only after the October 1988 car accident noted above, in which the Veteran injured her neck or injured her neck within a week thereof. The Veteran was found to have cervical radiculopathy, a herniated cervical disc, and minor multilevel cervical disc protrusion in 1991. See July 30, 1991 treatment record. A fusion was performed in 1995. The Veteran attended a VA examination in May 2010. She reported pain, including radiating pain, began in 1974. She also reported having two related surgeries, one in 1993 for MS, and a cervical fusion in 1995. The examiner indicated she was unable to determine without speculation if the Veteran’s neck pain is related to service as there are no medical records documenting neck pain. The Veteran attended an additional VA examination in July 2016. The “Veteran states she feel her neck pain is related to her active duty service. Veteran went on to say she has had two surgeries on her cervical spine one for MS at Tanner Medical in 1993 and a Cervical fusion at West Paces Ferry in 1995. She states she has never really recovered from her surgeries and is now disabled.” See July 2016 examination report. The examiner opined it is less likely than not that the claimed condition was incurred in or caused by service. In support of this, the examiner explained, “A review of the veteran's [service treatment record] is reflective of silence for a diagnosis, complaint or treatment for a cervical spine condition . . . Further, veteran's [service treatment record] reflects her being hit in the stomach and back with a volleyball and not the cervical spine and was not indicative of a chronic condition. Therefore, it is my opinion that the veteran's current claimed cervical spine condition to include that any current intervertebral disc disease of the cervical spine is related to any event or injury during service, including her being hit in the back by a volleyball in July 1974 is less likely than not caused or incurred as a result of her active service.” The Board recognizes the July 2016 examiner’s rationale does not address the Veteran’s lay assertions of pain since service. Furthermore, the Board recognizes the Veteran is competent to report such pain. However, remand for an opinion that considers such statements is unwarranted, as the Board finds the Veteran’s contention of neck pain since service to not be credible. As noted by VA examiners and confirmed by the Board, the Veteran’s service treatment records do not contain complaint of or treatment for any neck issue beyond a rash. Furthermore, despite allegedly being in pain since 1974 and receiving treatment for numerous ailments in the years after separation from service, the Veteran did not seek treatment for or complain of neck pain or any cervical spine issue until more than a decade after separation from service and after being involved a motor vehicle accident in 1988. When she did seek treatment, she made no indication her neck issues were related to service until she filed for VA benefits. Dr. L.S.’s November 2015 opinion also provides support for the Veteran’s cervical spine claim. However, as noted above, Dr. L.S. did not provide a rationale for this opinion. Therefore, it is of little probative value. The Veteran has not provided an addendum opinion from Dr. L.S. in the years since our March 2016 decision. Accordingly, the Board finds the preponderance of the evidence is against finding that any current cervical spine disability manifested in service or is otherwise related to service. REASONS FOR REMAND 1. Entitlement to service connection for multiple sclerosis is remanded. The Board notes the Agency of Original Jurisdiction (AOJ) prepared a rating decision that appears to grant service connection for multiple sclerosis in an August 2016 rating decision. There is no notification letter of record, but the Veteran appears to have been provided a copy of the rating decision. See September 20, 2016 report of general information. On September 8, 2016 the AOJ issued a supplemental statement of the case denying service connection for multiple sclerosis. In July 2017, the AOJ called the Veteran to explain she was not service connected for multiple sclerosis. The following day a rating decision was created for “record purposes only”, but the accompanying codesheet indicated multiple sclerosis was no longer service connected. See July 2017 rating decision and codesheet. There is no notification letter of record. There is currently insufficient information of record to make a determination at this time. Therefore, remand is warranted for the AOJ to add relevant documents to the record. The matters are REMANDED for the following action: 1. Determine if service connection was previously granted for multiple sclerosis. See August 2016 rating decision. 2. Was the rating decision promulgated or was the Veteran otherwise informed of the decision? 3. If the decision was promulgated, what legal action was taken to revise the decision? 4. If the decision was promulgated, is there a basis to sever service connection? 5. The AOJ is at liberty to seek guidance from either Central Office or OGC. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedure. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.