Citation Nr: 0001372 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-18 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant served on active duty from February 1969 to February 1973. Service in Vietnam is indicated by the evidence of record. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant testified at a personal hearing conducted before the undesigned Board Member in July 1998. When last before the Board, in November 1998, the appellant's claim was remanded in part to ensure compliance with the decision of the United States Court of Appeals for Veterans Claims in Robinette v. Brown, 8 Vet. App. 69 (1995), discussed below. Having examined all evidence of record, the Board is of the opinion that this matter is ready for appellate review. By rating decision dated in September 1997, service connection for a skin rash and for asthma as a result of claimed exposure to herbicides was denied. By rating decision dated in January 1998, service connection was denied for hearing loss, tinnitus; and for a jaw injury secondary to in-service dental trauma. Following the Board's November 1998 remand of the issue presently under consideration, in April 1999 the RO denied service connection for compensation purposes for in-service dental trauma. The appellant's claims folder does not reveal that a notice of disagreement has been filed relative to any of the foregoing claims. Accordingly, those issues are not currently in appellate status and will be discussed no further herein. FINDINGS OF FACT 1. The appellant sustained dental trauma as a result of an in-service incident. 2. Competent medical evidence has not been adduced that links the appellant's claimed migraine headache disorder to the combat incident, to service-connected dental trauma, or to any other incident of military service. CONCLUSION OF LAW The appellant's claim of service connection for migraine headaches, secondary to in-service dental trauma, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that he has migraine headaches which are attributable to an in-service dental trauma, which has been service-connected for treatment purposes. The appellant therefore argues that a grant of service connection for the headache disorder is warranted on a secondary basis. The appellant also appears to be contending the service connection may be warranted on a direct basis in that he testified that headaches began during service after the incident which caused the dental trauma. The Board will accordingly explore service connection on both a direct and a secondary basis. By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West 1991). With this requirement of law, and in light of the appellant's contentions, a brief factual review of evidence of record as found in the appellant's claims folder would be helpful to an understanding of the Board's decision. The Board will then review the applicable law. Finally, the Board will analyze the appellant's claim and render a decision. Factual background The appellant's service medical records reveal that while serving on active duty in Vietnam, he sustained trauma to his number eight and 10 teeth. The service medical records do not reflect any complaints of or treatment for headaches. The report of the medical examination done prior to the appellant's separation from service in February 1973 reflects no neurologic complaints, symptoms, or diagnoses. Although the appellant reported that he once had a "head injury," it was noted that in addition to specified symptoms, the appellant denied all significant medical history. He specifically responded "no" to the question in the report of medical history concerning frequent or severe headache. Physical examination was pertinently normal, with the exception that teeth 8 and 10 were noted to have been missing. By rating decision dated in July 1984, service connection for treatment purposes was granted for the in-service dental trauma to the number eight and 10 teeth. In a statement received in March 1997, the appellant sought service connection for what he described where migraine headaches, which he indicated were brought about by his in- service dental injury. He reported that he was then experiencing a popping sensation in his jaw, which was then followed by a severe headache. By rating decision dated in March 1997, service connection for migraine headaches as secondary to the service-connected dental trauma was denied. In due course of his ensuing appeal, outpatient treatment records were received from the Huntington, West Virginia VA Medical Center. These reflect periodic treatment for respiratory and dermatologic disorders. Except for a March 1997 complaint of headaches, adduced during the course of an Agent Orange examination, the records are devoid of any reference to any neurological disorders. In July 1998, the appellant testified at a personal hearing before the undersigned. He stated that one evening, he was assisting in building an outdoor handball court while in Vietnam and that while doing so, he and his friends were subjected to enemy small arms fire. The appellant that during the resulting movement to cover, he ran into a tree and sustained the dental injury as is reported above. He received in-service medical treatment for the dental injury. The appellant further stated that within three months after becoming injured, he began having headaches. He stated that he informed military physicians of his headaches. The appellant stated that he asked his VA primary care physician, Dr. P. "off the record" whether his headaches could have been caused by in-service dental trauma. While he reported that both Dr. P. and a Dr. D. replied in the affirmative, there was no written documentation reflecting this. The appellant stated that he was never treated for the headaches. In November 1998, the Board remanded the appellant's claim, and directed in part that the RO attempt to secure the records of Drs. P. and D. In January 1999, VA medical records dated from 1984 to 1999 were received by the RO. In part, the records reflect continuing treatment for respiratory problems, hypertension, and continuing dental care. The records are devoid of any mention of a headache disorder. Also in January 1999, the appellant reported that he had no further medical records to submit. Relevant Law and Regulations Service connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991). Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a) (1999). Secondary service connection shall be awarded when a disability is proximately due to, or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (1999). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448. Well-Grounded Claims The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim. A well-grounded claim is "one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible" in order meet the burden established in the statute. Kandik v. Brown, 9 Vet. App. 434, 439 (1996). Under the law, a person who submits a claim for benefits 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); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for the appellant's claim to be well grounded, there must have been presented competent evidence of a current disability; a disease or injury which was incurred in service, and a nexus between the disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996)(table). As noted above, the law provides that service connection may be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service- connected disability. 38 C.F.R. § 3.310(a) (1999). A valid assertion of secondary service connection must nonetheless fulfill the well-grounded claim requirement applicable to other claims. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Velez v. West, 11 Vet. App. 148, 158 (1998); Locher v. Brown, 9 Vet. App. 535, 538-539 (1996). There must be evidence of the claimed disability; a service-connected disease or injury; and a nexus, established by competent medical evidence, between the two. Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The burden to submit evidence sufficient to establish a well- grounded claim is the claimant's alone. Epps v. Gober, 126 F.3d 1464, 1469 (Fed.Cir. 1997). Where the determinative issue involves either medical etiology or diagnosis, competent medical evidence is necessary to fulfill the well- grounded claim requirement. Where the determinative issue does not require medical diagnosis or etiology, lay testimony by itself may suffice to meet the statutory burden. Caluza, 7 Vet. App. at 504; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The truthfulness of evidence is presumed in determining whether a claim is well grounded unless the statements are inherently incredible or beyond the competence of the person making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis As noted above, in order for this claim to be considered to be well grounded, there must be (1) evidence of a current disability; (2) evidence of injury in service and/or of a service-connected disability; and (3) evidence of a nexus between the in-service injury or disease and the current disability. See Caluza and Reiber, supra. With respect to the second Caluza/Reiber element, in-service incurrence, there is ample evidence of both an in-service trauma and a service-connected disability. However, the record is devoid of any current diagnosis of migraine headaches or of medical evidence linking the appellant's claimed current disorder to any incident of his military service or to his service-connected (for treatment purposes) dental trauma. It is clear that the appellant believes his headaches are linked to the dental disability. However, the appellant's theory regarding this linkage is not sufficient to render his claim well grounded. It is now well-established that the appellant, as a layperson, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993). Competent medical evidence is required. The Board has carefully considered the appellant's account of continued symptomatology since his discharge from active duty in February 1973. However, in Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court held that 38 C.F.R. § 3.303(b), pertaining to continuity of symptoms, does not relieve a claimant of the burden of providing a medical nexus between service and the currently claimed disability. In this case the appellant has failed to provide the required medical nexus evidence. Finally, this matter was remanded in November 1998 because the appellant indicated that medical opinions by Drs. P. and D existed which would prove to be favorable to his claim. See Robinette v. Brown, 8 Vet. App. 69, 80 (1995). As indicated above, the RO made efforts to obtain such medical opinions, which proved to be unavailing. The Court has held that a claimant's accounts of statements made to him by physicians cannot render the claim well grounded. The connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 74 (1995). The Board further notes that through his representative in October 1999, the appellant evidently conceded that the claim is not well grounded. In summary, having carefully reviewed all of the evidence of record in this matter and presumed it credible for the limited purpose of ascertaining the claim's plausibility, the Board finds that the appellant has not submitted a well- grounded claim of service connection for migraine headaches. The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268 (1997). So it is in this case. In the absence of a well-grounded claim, the benefit sought on appeal is denied. Additional comment Because the appellant's claim for service connection is not well-grounded, VA is under no duty to further assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a); Epps v. Gober, 126 F.3d 1454 (Fed. Cir. 1997). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the appellant has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). As discussed in detail above, the Board remanded this case in November 1998, invoking Robinette, because the appellant indicated that medical opinion evidence favorable to his claim may have existed. The results of that remand were fruitless. VA is not on notice of any other known and existing evidence which would make the adjudicated service connection claim plausible. ORDER A well-grounded claim not having been presented, the claim of entitlement to service connection for migraine headaches is denied. Barry F. Bohan Member, Board of Veterans' Appeals