Citation Nr: 0003091 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 94-04 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1 Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a disability of the cervical spine. 3. Entitlement to service connection for a disability of the lumbar spine. 4. Entitlement to an increased (compensable) evaluation for headaches. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from July 1989 to April 1992. Service in Southwest Asia during the Persian Gulf War is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) from a September 1992 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied service connection for residuals of a head injury, disabilities of the cervical and lumbar spine and a right knee disability and granted service connection for headaches, for which a noncompensable evaluation was assigned. The veteran appealed all of those issues. By rating action of March 1997, the RO granted service connection for a disability of the right knee, for which a noncompensable evaluation was assigned. A review of the veteran's claims folder does not reveal that a Notice of Disagreement has been filed relative to that issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability]. The Board also notes that in the March 1997 rating action the RO denied entitlement to service connection for a respiratory disorder due to an undiagnosed illness under the provisions of 38 C.F.R. § 3.317. In March 1998, the veteran filed a Notice of Disagreement as to that issue. In February 1999, the RO issued a Statement of the Case. There was no substantive appeal filed as to that issue and accordingly, the Board is without jurisdiction to consider that issue. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. In a February 1999 rating decision, the RO addressed eleven issues raised by the veteran. Two of the issues, entitlement to service connection for a cervical spine condition and for a lumbar spine condition, had previously been developed for appeal; the previous denials were confirmed and continued. To the Board's knowledge, no Notice of Disagreement has been filed with respect to the remaining nine issues, all of which were denied. Accordingly, only the issues enumerated on the front page of this decision are before the Board for appellate consideration at this time. In the veteran's appeal she had initially requested a hearing to be held before a member of the Board. That hearing request was withdrawn in correspondence from the veteran dated in October 1994. FINDINGS OF FACT 1. There is no competent medical evidence in the record demonstrating that the veteran has any currently diagnosed residuals of head trauma aside from those already service connected. 2. There is no competent medical evidence that the veteran currently has a chronic disability of the cervical spine. 3. The evidence includes a current diagnosis of scoliosis of the lumbar spine and shows that scoliosis was also documented during service. 4. The veteran has headaches which are not shown to be prostrating in nature. CONCLUSIONS OF LAW 1. The veteran has not presented a well-grounded claim of entitlement to service connection for residuals of a head injury. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not presented a well-grounded claim of entitlement to service connection for a disability of the cervical spine. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a disability of the lumbar spine is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a compensable evaluation for headaches have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.20, 4.124, Diagnostic Code 8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for residuals of a head injury, and for disabilities of the cervical and lumbar spine. She is also seeking entitlement to a compensable evaluation for headaches. In the interest of clarity, the law and regulations will initially be set out. The issues on appeal will then be discussed separately. Law and regulations Service connection In general, the applicable law and regulations state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). With chronic disease shown as such in service 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. 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, as distinguished from merely isolated findings. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Congenital or developmental defects are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9 (1999). See Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Increased Evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(a), 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), however, the Court of Appeals for Veterans Claims (Court) has held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Since this is an appeal of an initial rating assignment, the Board is not limited to consideration of the current diagnosis of the veteran's disability. Id. Well grounded claims The threshold question in every case is whether each claim presented is well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The statutory duty to assist the veteran in the development of his claims does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order for service connection a claim to be well-grounded, the record must contain three types of competent evidence: (1) evidence of the current disability, usually shown by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service, shown by lay or medical evidence; and (3) evidence of a nexus between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is generally required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). See Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Additional law and regulations will be set forth where appropriate below. 1. Entitlement to service connection for residuals of a head injury. Factual Background The service medical records reflected that upon enlistment examination conducted in April 1989, clinical evaluation of the head was normal. At that time, the veteran gave a history of a head injury and indicated that when she was 27, she had been kicked in the mouth by a horse, resulting in a broken palate and the removal of a tooth. The records showed that in May 1990, the veteran was seen following a fall. She complained of dizziness, lightheadedness and blurred vision. A small hematoma on the forehead was noted. An assessment of partial complex seizures was made. A CT scan of the head taken in May 1990 was normal. An MRI taken of the head in May 1990 was also within normal limits. In late May 1990 an assessment of seizure disorder was made. A June 1990 EEG was suggestive of a general seizure disorder. An August 1990 medical statement from the veteran's chiropractor was included in the service medical records. The chiropractor stated that he had treated the veteran since June 1990 for musculoskeletal complaints and that during the course of the veteran's treatment it became necessary to refer her for neurological evaluation because she had been treated by military doctors for a seizure disorder. The chiropractor indicated that after reviewing the military medical records, he could find no evidence of any indication for such a diagnosis and therefore referred the veteran for evaluation by a neurologist. It was noted that following a comprehensive neurological evaluation including EEG and an MRI scan of the head, it was determined that the veteran did not have a seizure disorder. It was noted that apparently some of the symptoms which had been diagnosed as a seizure disorder were due to the prescribing of the drugs Tegretol and Dilatin. It was commented that since the veteran had been removed from these drugs, she had been showing much improvement and was progressing normally. The service medical records showed that the veteran was seen in July 1991 due to a 14 month history of attacks manifested by hyperventilating and loss of voluntary motor control. Impressions of atypical blackout-like spells and chronic, mild nonspecific headaches were made. In September 1991, a private medical statement from the neurologist who had evaluated the veteran upon referral from her chiropractor was received. He indicated that he had performed a complete evaluation due to her "enigmatic spells". He noted that she had been told that she had a seizure disorder and had been on both Tegretol and Dilantin. He noted that an EEG was completely normal with no evidence of a seizure disorder. It was commented that she had been taken off Dilantin and since then had noted a marked diminution in both the severity and frequency of her spells. He stated that there was a possibility that the spells could have been precipitated by pressure on her occipital area in the past. He opined that there was no evidence which suggested that the veteran had a seizure disorder. The veteran underwent a psychological evaluation in September 1991, at which time it was found that the veteran showed strong tendencies to convert psychological stress into physical symptoms or complaints. Upon service Medical Board evaluation conducted in November 1991, clinical evaluation of the head was normal. Upon medical board evaluation conducted in December 1991, a review of systems was positive for frequent headaches and seizure/attention disorder. A history of a fall in May 1990 was noted following which symptoms of frequent headaches, shaking of the extremities, muffled hearing and visual disturbances were noted. Neurological evaluation was positive for a headache disorder with questionable migraine equivalent, a complex seizure disorder versus psychogenic symptoms. Psychiatric evaluation was suggestive of a partial simple versus complex seizure disorder with indeterminate psychologic overlay. A final diagnosis of cephalalgia was made. The veteran was seen for a VA general medical examination in September 1992. At that time she gave a history of a head injury in May 1990 when she hit the back of her head when she fell on the floor in the bathroom. She complained of having headaches on and off since that time. By rating action of September 1992, the RO granted service connection for headaches and denied entitlement to service connection for residuals of a head injury. In a VA medical record dated in August 1994, the veteran complained of a head injury resulting from a fall in which the she hit her head in May 1990. She reported that she developed right sided headaches and had "lost control of her limbs". A VA medical record dated in December 1994 reflected that the veteran had a history of a seizure disorder secondary to head trauma. She complained of headaches over the right eye, which were throbbing and radiated to the frontal/forehead area. It was noted that the headaches were relieved with Tylenol and Motrin. An assessment of tension headaches was made. A private medical statement from a chiropractor dated in May 1998 reflected that the veteran had been under care since her return from service and prior to that time. It was commented that since service the veteran had complained of symptoms including headaches. Analysis As mentioned above, the initial matter which must be resolved on appeal is whether the veteran has presented a well- grounded claim. In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran contends that she has experienced residuals of head trauma which was sustained during service. The service medical records did show that the veteran sustained a head injury in May 1990 and complained of various symptoms thereafter, including headaches, dizziness, and shaking of the extremities. Thus, the second prong of the Caluza analysis, in-service injury, has been satisfied. As noted above, one element of a well-grounded claim is a presently-existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Absent evidence of a current disability, the claim is not well grounded. The inquiry of the Board must therefore be directed to what disabilities the veteran is referring to in seeking service connection for residuals of a head injury. Service connection was granted for headaches September 1992. Service connection is also already in effect for an undiagnosed illness manifested by fatigue, memory loss and insomnia. Accordingly, the question is whether there is any current clinical evidence of a disability, other than those conditions, which is attributable to the head trauma. It is clear from the medical evidence reported above that a seizure disorder was initially suspected, but it was ruled out. See, in particular, the September 1991 neurology report concerning the veteran's "enigmatic spells". There has been no recent diagnosis of a seizure disorder. There have also been suggestions of a psychiatric component to the veteran's "spells" but there has never, to the Board's knowledge, been a diagnosis of any psychiatric disability. The only recently diagnosed disability which appears to be attributable to the fall in service is headaches, which is already service connected. The Board concludes that the first Caluza prong, a current disability, is not present. In Rabideau v. Derwinski, 2 Vet. App. 141 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. Accordingly, the veteran's claim is not well grounded. Moreover, the record does not contain any competent medical evidence which establishes an etiological nexus between the head injury sustained in May 1990 and any chronic residuals which are not already service connected. The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service . . ., a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268, 271 (1997). Because the veteran has not submitted medical evidence establishing the existence of a current disability resulting from her in-service head trauma, or any medical evidence supporting her contention that she has any chronic residuals as a result of that trauma which are not already service connected, it is concluded that she has failed in her duty to submit evidence which would justify a belief by a fair and impartial individual that the claim is plausible. Accordingly, the claim is denied. 2. Entitlement to service connection for a disability of the cervical spine. Factual Background The service medical records reflected that upon enlistment examination conducted in April 1989, clinical evaluation of the spine was normal. In July and August 1991, the veteran was seen for complaints of upper back pain. A bone scan taken of the spine in September 1991 was normal. A private medical statement from the veteran's chiropractor dated in October 1991 indicated that when the veteran was initially evaluated, there was a marked reduction in the cervical range of motion and that an examination revealed spinal nerve pressure in the upper cervical and sub-occipital region. The chiropractor stated that a diagnosis of subluxation complex in the upper cervical region was made. On service Medical Board evaluation conducted in December 1991, it was reported that the veteran complained of frequent, intermittent posterior cervical pain which was exacerbated by increased activity. Physical examination revealed full range of motion. Upper extremity motor sensory and reflex examinations were normal. A final diagnosis of cervical back pain was made. Physical evaluation board proceedings in February 1992 determined that the veteran was disabled due to conditions which included cervical and lumbar back pain. The veteran was seen for a VA general medical examination in September 1992. She complained of neck pain which could be relieved by chiropractic manipulation. No diagnosis referable to the cervical spine was made by the examiner. In October 1992, a private medical statement from Dr. W. was submitted which showed that X-ray films of the spine taken in May 1991 revealed no evidence of gross pathology, luxation or fracture. In September 1993, the veteran was seen for complaints of pain of the entire spine. Physical examination showed that the neck was supple with full range of motion and without pain. A private medical statement from the veteran's chiropractor dated in May 1998 reflected that the veteran had been under care since her return from service and prior to that time. It was commented that since service the veteran had complained of symptoms including low back and neck pain. The chiropractor indicated that the most persistent objective findings consisted of restricted range of motion of the joints and extensive edema and noted that such symptoms were not present prior to enlistment. The chiropractor opined that "something intrinsic in her system" was producing the edematous condition. A VA examination was conducted in March 1998. Physical examination revealed full range of motion of the cervical spine. There was no posterior neck triangle pain. There was soreness to palpation in the midline of C6, C7, C8. The examiner noted that in summary, the physical examination objectively revealed no structural deficit, no atrophy and no loss of motion. Analysis As stated previously, in order for a claim to be well grounded, there must be competent evidence of (1) a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Board recognizes that the service medical records document that the veteran complained of and was treated for symptomatology of the cervical spine in service. Thus, the second prong of the Caluza analysis is satisfied. A review of the record does not reflect that a current diagnosis of a clinical disability of the cervical spine has been made. VA examination conducted in 1998 objectively revealed no structural deficit, no atrophy and no loss of motion. This is consistent with previous examinations and X- ray findings. Essentially, no medical evidence been presented which establishes the presence of the claimed disability. The Board is of course aware of the veteran's complaints of neck pain. However, pain and soreness unaccompanied by any physical disabilities or limitations are not indicative of disability in and of themselves. See Sanchez-Benitez v. West, U.S. Vet. App. No. 97-1948 (December 29, 1999). The statement from the veteran's chiropractor dated in 1998 failed to identify any specific disability of the veteran's cervical spine. The chiropractor merely indicated that "something intrinsic in her system" was causing limited motion and edema of the veteran's joints. Service connection has been granted for an undiagnosed illness manifested by joint and muscle aches under the provisions of 38 C.F.R. § 3.317. In advancing this claim, the veteran essentially contends that she has a current disability of the cervical spine. Lay statements to this effect were also presented for the record. However, lay persons are not competent to render medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In short, the evidence presented does not establish that the veteran has a current clinically diagnosed disability of the cervical spine. The June 1998 examination findings, while recognizing the veteran's complaints of pain and soreness, did not demonstrate any corresponding physical disability of the cervical spine either caused by or resulting from the veteran's complaints of pain. In Rabideau v. Derwinski, 2 Vet. App. 141 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. Accordingly, the first prong of the Caluza test, current disability, has not been met as to this issue. Consequently, the Board concludes that the claim of entitlement to service connection for a disability of the cervical spine is not well-grounded and must be denied. Additional Matters When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether she has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the veteran has been accorded ample opportunity by the RO to present argument and evidence in support of her claims. In this case, the Board has concluded that the veteran has not submitted well grounded claims for entitlement to service connection for residuals of head trauma or for a disability of the cervical spine and that no prejudice to the veteran has been shown. Further, because the claims are not well grounded, the VA is under no duty to further assist the veteran in developing facts pertinent to those claims. 38 U.S.C.A. § 5107(a). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the VA is not on notice of any known and existing evidence which would make the veteran's service connection claims plausible, and thereby, well-grounded. The Board's decision serves to inform the veteran of the kind of evidence which would be necessary to make her claims well grounded. 3. Entitlement to service connection for a disability of the lumbar spine. Factual Background The service medical records reflected that upon enlistment examination conducted in April 1989, clinical evaluation of the spine was normal. The veteran was seen for complaints of lumbar pain in November 1989, at which time an impression of lumbar strain was made. In June 1991, the veteran was seen for complaints of low back pain. Full range of motion was shown. A review of outside spinal series taken by a chiropractor revealed no significant scoliosis or kyphosis and no bony or soft tissue abnormalities. In late June 1991 the veteran was again seen for complaints of low back pain. At that time an assessment of mild scoliosis was made. X-ray films of the thoracic and lumbar spine taken in August 1991 were within normal limits except for slight scoliosis. A bone scan taken of the spine in September 1991 was normal. On medical board evaluation conducted in December 1991, it was reported that the veteran had experienced low back problems for two years and had indicated that she experienced back pain prior to enlistment. Physical examination of the lumbar spine revealed tenderness across the lower lumbosacral junction area. There was no demonstrable spasm. A diagnosis of lumbar back pain was made. Physical evaluation board proceedings were undertaken in February 1992, at which time it was determined that the veteran was disabled due to conditions which included cervical and lumbar back pain. X-ray films of the lumbar spine taken in June 1992 revealed rotary scoliosis and minimal narrowing of the intervertebral disc space. The veteran was seen for a VA general medical examination in September 1992. She reported that she had injured her lower back in June 1991 and complained of pain. Mild tenderness was noted. Full range of motion of the lumbar spine was shown. There was no evidence of muscle spasm. Neurological examination was normal. An assessment of a history of an injury to the low back in June 1991 with residual full range of motion and 1+ pain complained of, but no muscle spasm and only mild tenderness. In September 1993, the veteran was seen for complaints of pain of the entire spine. Paraspinal tenderness of the lumbar spine was noted. Range of motion was described as good. X-ray films of the lumbar spine were normal. An assessment of back pain, neurologically intact was made X-ray films of the lumbar spine taken in January 1994 revealed evidence of levoscoliosis. A VA medical record dated in December 1994 reflected that the veteran was seen by Rheumatology, at which time tenderness of the lumbar spine was noted. The assessment indicated that the character of the low back pain was not consistent with inflammatory pain. A VA examination was conducted in March 1998, at which time the veteran complained of chronic low back pain. Physical examination revealed normal range of motion of the lumbar spine with complaints of pain at the extremes of forward flexion (at 70-80 degrees) and a painful return to the erect position with normal extension. X-ray films of the lumbar spine taken in April 1998 revealed a slight scoliosis. There was no sign of any disc degeneration or loss of vertebral body height or disc space height. The examiner noted that physical examination objectively revealed no structural deficit, no atrophy and no loss of motion. The examiner added that in light of a negative objective examination and negative X-ray examination, it was difficult to account for the veteran's ongoing subjective complaints. Analysis As stated previously, in order for a claim to be well grounded, there must be competent evidence of a current disability, incurrence or aggravation of a disease or injury in service and a nexus between the in-service injury or disease and the current disability. In this case, the veteran's claims file contains post-service evidence dated in 1994 and 1998 establishing the presence of scoliosis of the lumbar spine. Accordingly a current disability arguably is shown. Further, the service medical records also showed that scoliosis of the lumbar spine was present. There also appears to be continuity of symptomatology between the in-service scoliosis and the scoliosis which was identified shortly after service. See 38 C.F.R. § 3.303(b). Accordingly, the claim is well- grounded for the purposes of 38 U.S.C.A. § 5107(a) (West 1991). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded claims. Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Since the claim is well grounded, VA does have a duty to assist the veteran in the development of evidence pertinent to her claim and will undertake to do so, as will be fully explained in the remand portion of this document. 4. Entitlement to an increased (compensable) evaluation for headaches. Factual Background By rating action of September 1992, the RO granted entitlement to service connection for headaches, for which a noncompensable evaluation was assigned effective from April 1992. The veteran was seen for a VA general medical examination in September 1992. She gave a history of a head injury sustained in May 1990 and reported that she had experienced headaches on and off since then. She explained that her headaches started in the right posterior cervical area and went up to the right side of the skull and to the right orbital area. She denied symptoms of nausea and vomiting as well as photophobia. The examiner concluded that the headaches appeared to be muscle tension type headaches from history. An August 1994 VA medical record reflected that the veteran still had headaches on the right side of her head about once a week and lasting all day. She reported that Motrin did not relieve the pain, but indicated that they were relieved with chiropractic treatment. She reported that the headaches were accompanied by shaking of the limbs and falling to the floor. She indicated that she did not lose consciousness, but was unable to respond to commands. A VA medical record dated in December 1994 reflected that the veteran complained of headaches over the right eye, which were throbbing and radiated to the frontal/forehead area. It was noted that the headaches were relieved with Tylenol and Motrin. An assessment of tension headaches was made. Upon VA examination for mental disorders conducted in February 1995, the veteran complained of headaches and indicated that she was not on medication. Complaints of headaches were shown in a December 1995 VA outpatient record. A VA examination was conducted in March 1998, at which time the veteran indicated that she received chiropractic treatment consisting of manipulation of her neck which helped relieve some of her headache symptomatology. A private medical statement from a chiropractor dated in May 1998 reflected that the veteran had been under care since her return from service and prior to that time. It was commented that since service the veteran had complained of symptoms including headaches. Analysis Initial matters - well groundedness of the claim/duty to assist/standard of proof As discussed above, a person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for a compensable rating for headaches is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). As noted above, a well-grounded claim triggers VA's statutory duty to assist the veteran in the development of her claim. See 38 U.S.C.A. § 5107(a). In this case, there is ample medical evidence of record pertaining to this issue. The veteran has identified no other relevant evidence which exists and which has not been associated with the claims folder. Once the evidence has been assembled, it is the Board's responsibility to weigh the evidence. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion The veteran's service-connected headaches, which have been diagnosed as muscle tension headaches have been rated as noncompensably disabling under Diagnostic Code 8100, migraine headaches. See 38 C.F.R. § 4.20. [when an unlisted condition is encountered it will be permissible to rate under a closely related disease]. Under Diagnostic Code 8100, a zero percent evaluation is warranted for migraine headaches with less frequent attacks. A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation requires characteristic prostrating attacks occurring on an average of once per month over the last several months. Evaluations under Diagnostic Code 8100 are based on the frequency and severity of headaches. The evidence reflects that in 1994 the veteran in reported having headaches once a week. However, the rating criteria further specifies that the attacks be prostrating in nature in order for a compensable evaluation to be warranted. The veteran has reported that her headaches could be throbbing, but were resolved with chiropractic treatment and/or Motrin. She has also denied symptoms of nausea and vomiting as well as photophobia. The veteran does not appear to be taking prescribed medication or following other prescribed specialized treatment for headaches. There is no indication that the headaches have interfered with her employment. See 38 C.F.R. § § 41., 4.10. Furthermore, and very significantly, the Board notes that after 1995 there has been almost no mention of the condition in the medical records. In short, the veteran has not reported manifestations consistent with prostrating headaches which would warrant assignment of a compensable evaluation under Diagnostic Code 8100. Further, the Board is unable to identify any clinical evidence which would provide a basis for the assignment of a compensable evaluation for headaches at any time from April 3, 1992 forward. See Fenderson v. West, 12 Vet. App.119 (1999). Accordingly, the preponderance of the evidence is against the veteran's claim and the claim is denied. ORDER A well-grounded claim having not been presented, the veteran's claim of entitlement to service connection for residuals of head trauma is denied. A well-grounded claim having not been presented, the veteran's claim of entitlement to service connection for a disability of the cervical spine is denied. The claim of entitlement to service connection for a disability of the lumbar spine is well grounded. To this extent only, the appeal is granted. The claim of entitlement to an increased disability rating for headaches is denied. REMAND As discussed above, the Board has found that the claim of entitlement to service connection for a disability of the lumbar spine is well grounded by virtue of the fact that scoliosis of the lumbar spine was shown both in service and shortly post service and that there appears to have been continuity of symptomatology. For the reasons expressed below, the Board believes that a remand for further development of the veteran's claim is called for. See 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.159, 19.9. VA regulations stipulate that congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (1998); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Service connection, however, may be granted for a congenital disease on the basis of aggravation. See 38 U.S.C.A. § 1153 (West 1991 & Supp. 1998); 38 C.F.R. § 3.306 (1998); VAOPGCREC 82-90. Inasmuch as scoliosis may be considered a congenital or developmental defect, the Board believes that a medical opinion addressing this matter would prove helpful in this case. Accordingly, the case is hereby REMANDED to the RO for the following action: 1. The veteran should be contacted and asked to identify any medical records pertaining to her lumbar spine which have not been previously associated with her claims folder. After obtaining appropriate consent of the veteran, the RO should attempt to obtain any such records and associate them with the veteran's claims folder. 2. The veteran's claims folder should then be referred to a VA physician. The examiner, after a review of the medical records contained in the veteran's claims folder, should respond to the following questions: (a). Does the veteran have a current lumbar spine disability? (b). If the answer to question (a) is affirmative, what is the most likely diagnosis of that disability? (c). If the diagnosed disability is scoliosis, is such congenital or a developmental defect? If it is determined that scoliosis is congenital or a developmental defect, the examiner should also address whether the evidence reflects that scoliosis was aggravated during the veteran's service. (d). If a current disability of the lumbar spine other than scoliosis is shown, is it at least as likely as not that such disability is etiologically related to service? If deemed to be necessary by the reviewing physician, a VA physical examination of the veteran should be scheduled in order to address these questions. A report of the examiner's findings should be prepared and associated with the veteran's claim folder. The RO should readjudicate the claim following completion of the action requested in this remand. If the claim remains denied, the veteran's claims folder should be returned to the Board after compliance with all requisite appellate procedures. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Barry F. Bohan Member, Board of Veterans' Appeals