Citation Nr: 1754521	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-19 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for migraines (claimed as headaches).  


REPRESENTATION

Veteran represented by:	American Legion


ATTORNEY FOR THE BOARD

N.Yeh, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from November 1962 to November 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

The preponderance of the evidence is against finding that the Veteran's headaches are a result of his military service.  


CONCLUSION OF LAW

The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran was provided this required notice and information regarding his claim for service connection for his migraines in a letter dated June 2012.  He has not alleged any notice deficiency during the processing and adjudication of his claims.  

Next, VA has a duty to assist the claimant in the development of the claim.  This duty includes assisting him in the procurement of service treatment records, private treatment records, providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein.  The Veteran was afforded a VA examination in February 2013.  A medical opinion addendum was later issued in March 2013.  The Board finds that the VA examination reports are adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran.  Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined in February 2013.  See 38 C.F.R. § 3.327(a) (2016).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995).

II.  Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38. U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a)(2016).  "To establish a right to compensation for a present disability, a 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, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought.  See 38 C.F.R. § 3.310 (2016). 

Service connection for certain chronic diseases will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a) (2017).  Here, the Veteran's migraine headaches are an organic disease of the nervous system as it is rated as a neurological condition in the Schedule for Rating Disabilities.  38 C.F.R. § 4.12a, Diagnostic Code 8100.  Hence, 38 C.F.R. § 3.303 (b) applies to this case.

In relevant part, 38 U.S.C.A. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).  

As a separate matter, the Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the fact finder.").  Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record.  See Buchanan, at 1337.  

The Veteran contends that his headaches began in service and have worsened since his separation.  He asserts that his headaches started when he developed his now service connected anxiety, due to the threat of harm (rape) in service.  The Veteran's Service Treatment Records (STR) Neuropsychiatry Clinic report dated April 1963 describes his conflicts with other servicemen.  While aboard the USS Great Sitkin, the Veteran experienced difficulties getting along with other mess cooks, and felt that he was mistreated.  The report also documented his complaints of frequent periods of depression and headaches due to concerns about his health.  

The Veteran's enlistment medical evaluation (Report of Medical History) dated December 1961 showed that the Veteran denied frequent or severe headaches.  A report of medical examination showed no outstanding problem relating to headaches.  He was subsequently found qualified for enlistment.  Another report of medical examination dated June and November 1962 showed no complaints of frequent or severe headaches.  

After service, the Veteran visited a VA treatment facility in June 2000.  There, he denied having any headaches.  He was later afforded a VA examination in February 2013.  There, the Veteran reported to the VA examiner that his headaches began in service.  Currently, he reported that his symptoms were mild and did not require treatment, and that his headaches occur 2 to 3 times a week, lasting between 1 to 2 hours.  He described the pain as pulsating/throbbing on both sides of the head, with sensitivity to light and sound.  The Veteran also reported mild symptoms that are associated photo/phonophobia.  There were no focal neurological changes, and no recent changes in the nature or severity.  The examiner noted that prior to this examination, the Veteran has not been diagnosed with migraines.  The examiner also noted that the Veteran reported no instances of nausea or vomiting, and that he did not have prostrating attacks headache pain associated migraines.  After the evaluation, the VA examiner opined that the claimed headaches was less likely than not incurred in or caused by the claimed in-service injury event, or illness.  In his rationale, the examiner explained that the Veteran's symptoms are consistent with mild migraines and are not due to worries about his health.  The examiner found that the STRs only supported the Veteran's history of headaches while in active service since 'frequent headaches' was reported in April 29, 1963.  However, the examiner did not further elaborate on the distinction or relationship between the in service headaches and the Veteran's current migraines.  

In February 2013, RO deferred a rating decision and requested a medical opinion addendum.  That addendum was subsequently issued in March.  After review of the medical records, the VA examiner affirmed that the Veteran's migraine headaches were less likely than not related to his military service.  He explained that the Veteran's STR indicate that while there was a history of headaches in service, as evidenced by a one-time report at the neuropsychiatric clinic in April 1963, there were no follow up treatments.  It was the examiner's opinion that the in-service headaches were reported as the sequale of events that required neuropsychiatric consultation, which correlates best with tension type headaches.  The Veteran's current headaches are more associated with photo and phonophobia, indicating that the headaches are migraine in type and that there is clear medical distinction between these two types of headaches.  

Based on the foregoing, the Board finds that service connection is not warranted for migraine headaches.  With regard to the first element for service connection, the Veteran is currently diagnosed with migraine headaches detailed in his February 2013 VA examination, as required by 38 C.F.R. § 3.303 (2017).  However, based on the diagnosis and the examiner's opinion, the Veteran's current migraines and the reported headaches in service are etiologically distinct from one another.  The headaches in service, while may be frequent, were more correlated to tension headaches.  His current migraines are associated with photo and phonophobia.  

Furthermore, the Veteran's medical history does not show a continuity of the in-service headaches.  While the Veteran has asserted that his headaches began in service and worsened after service, there has been no post service record of continued complaints relating to headaches.  A June 2000 VA treatment record showed that he denied experiencing headaches during that period.  It was not until the February 2013 VA examination that showed medical documentation of the migraine headaches.  The Board therefore, finds that the Veteran's current headaches are different from the in service headaches as reported in April 1963, and that there is no showing of post-service continuity of the same symptoms and a nexus between the two conditions.  

While the Board finds that the Veteran is competent to report symptoms associated with headaches, he is not competent to establish a medical link between the two conditions.  The issue pertaining to the condition's etiology falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, supra.  The Veteran has not been shown to have the requisite medical expertise to render a competent medical opinion regarding the cause and effect relationship of his migraines.  Therefore, the Board can afford his statements no probative weight.  

In sum, the preponderance of the evidence weights against finding that the Veteran's migraine headaches is related to the Veteran's military service.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56.





ORDER

Entitlement to service connection for migraines (claimed as headaches) is denied.  



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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