Citation Nr: 0003842 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 92-09 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a disability manifested by blackouts. 3. Entitlement to service connection for a disability manifested by swelling of the face, hands, and feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from May 1974 to March 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 1993, September 1994, May 1996 and again in December 1998, the Board remanded the veteran's claim to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. On the issue of entitlement to service connection for headaches, all relevant evidence necessary for an equitable resolution of the veteran's appeal has been obtained by the RO. 2. The veteran was treated during service for headache complaints. Her current headache complaints are reasonably related to service. 3. The claims of entitlement to service connection for a disability manifested by blackouts and entitlement to service connection for a disability manifested by swelling of the face, hands, and feet, are not plausible. CONCLUSIONS OF LAW 1. Headaches were incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999) 2. The claims of entitlement to service connection for a disability manifested by blackouts and entitlement to service connection for a disability manifested by swelling of the face, hands, and feet, are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Headaches The claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1999). If the claim is well grounded, it must be shown that all relevant facts have been properly developed and that the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107 has been complied with. The Board finds that the claim is well grounded and that there is no further duty to assist the claimant in the development of the claim. 38 U.S.C.A. § 5107. In this regard, the Board notes that the veteran has indicated treatment after service at military facilities based on her status as a dependent spouse. The record shows that the veteran gave birth to one of her children at Maxwell Air Force Base; however no medical records of treatment for her have been located at military bases as a dependent spouse, despite efforts by the RO to secure them. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1999). Service connection may also 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). 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 or a diagnosis including the word "chronic." Continuity of symptomatology is required 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). The service medical records show that the veteran was treated on several occasions for complaints of headaches. The record shows that she was treated on a number of occasions during service in 1974 and 1975 for complaints of headache. The findings included upper respiratory infection in May 1974, sore throat secondary to post nasal drip, possible bronchitis in August 1974, and lymphadenopathy in October 1975. At separation in March 1976, she reported tension headaches when nervous that occurred every day and were relieved by Tylenol. VA outpatient records show that in January 1991, the veteran complained of severe headaches. In May 1991, she reported having a bad headache for 4 days and that medication was not helping. In February 1993, the veteran was seen for headache complaints. She gave a history of headaches since pregnancy. The examiner found probable migraine headaches/chronic pain. An April 1993 CT scan report found no evidence of intracranial hemorrhage, infarction, or mass effect. In June 1993, the veteran reported that prescribed medicines were not helping her headaches; also in June 1993 she was hospitalized at a VA facility for headaches, and medications were administered. Private medical records show that the veteran was examined for headache complaints in December 1993. She reported that the headaches were associated with nausea, vomiting, and photophobia. She reported that the headaches occurred sporadically. The examiner assessed, common migraine headaches, and noted that the veteran had a non- focal neurological examination. The veteran underwent a neurological examination in November 1994. She stated that she had headaches since she was 22 years old during her pregnancy. She also stated that she was living in a barracks that had been a mortuary. She said that she had severe headaches that occurred every two months, and frontal headaches that occurred daily. An EEG was normal. The impression included, chronic daily headache, and migraine. The examiner stated that these occurred at age 22 during the veteran's pregnancy, which was a precipitating factor for migraines. The examiner stated that he seriously doubted it had anything to do with the veteran's exposure to chemicals or bird repellants. He stated that certainly the time frame of their onset coincided with the veteran being in service. The veteran was examined by VA in November 1994, and she reported having headaches since 1975. She described her headaches as frontal and bitemporal which radiated to the back of the head. She reported having severe headaches once or twice a month. Neurological examination was noted to be normal. The examiner opined that it appeared that the veteran has had headaches since March 1977. The diagnosis was, migraine headaches. VA outpatient treatment for headache complaints continued into 1995. The veteran underwent a VA examination for disability evaluation in June 1996. She reported having headaches since service in 1975. The examiner noted that the veteran had evidence of a neurological deficit. The finding was, history of intractable recurrent headaches. The veteran underwent a fee basis examination for disability evaluation in July 1996. She stated that she had been exposed to chemicals in service and has had headaches, which occur daily, since that time. The examiner found, daily headaches, rule out rebound headache versus tension headache versus depression; evidently normal scans performed in the past. The examiner stated that he saw no correlation between the veteran's time in the service 18 years ago and her present headaches. The veteran was examined by VA in June 1998. She gave a history of headaches since service, and stated that she currently had headaches 3 times a month. Headaches, was the diagnosis. The veteran was examined by VA in May 1999. The examiner indicated that the claims file had been reviewed. The veteran gave a history of exposure to chemical PA-15 in the barracks that used to be a morgue. She reported that the headaches stopped in 1982 and started again in 1989. The finding was, history of headache after exposure to chemical PA-14 during the time she was in the service. The determining factor in this case is the weight given to the medical opinions which address the question of whether or not the veteran's current headaches are related to her inservice complaints. The claims folder includes statements from one VA physician who has opined that there is no relationship between the veteran's current headaches and service. However, a private physician and a VA physician have both related the veteran's current headache complaints to service. The private physician has stated that the veteran's pregnancy was the precipitating factor and that the time frame of the onset coincided with the veteran being in service. The VA physician has found headache after exposure to chemicals in service. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") in Elkins v. Brown, 5 Vet. App. 474 (1993), held that when there is no indication that an opinion has been formed on a basis separate from the appellant's recitation of his medical or service background rather than a review of the appellant's service medical records or other relevant documents, which would have enabled the physician to have formed an opinion as to service connection on an independent ground, the opinion has no probative value. In this case the June 1996 opinion, which states that the current headaches are not related to service, appears to have been based solely on history provided by the veteran. The Board notes that the examiner did not indicate that the claims file or any of the veteran's records had been reviewed, and the written history in the examination report does not refer to specific medical treatment or clinical records. The November 1994 examination appears also to have been based on a history provided by the veteran. However, the May 1999 examination report clearly indicates that the claims file had been reviewed, and previous diagnostic studies were reported on. The Board must give greater weight to the opinion of the VA physician, dated in May 1999. It is clear that the VA physician reviewed the claims folder and compared the examination results with the conclusions previously made. The veteran was treated during service for headache complaints. While there is a no evidence of treatment immediately after service, it appears that records from the military bases where the veteran claims to have been treated are missing since the record does show that she gave birth to one of her children at Maxwell Air Force Base and records of that hospitalization have not been found. Her headaches have been related to her military service by medical practitioners. The Board has concluded that the evidence reasonably supports finding that service connection for headaches is warranted. Blackouts and Swelling of the Face, Hands and Feet The threshold question to be answered is whether the veteran has presented evidence of well-grounded claims, that is, claims which are plausible and meritorious on their own or capable of substantiation. If she has not, her appeal must fail. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran's claims for service connection are not well grounded, and there is no further duty to assist the veteran in the development of her claims. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required where the condition noted in service is not shown to be chronic. 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). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court established the following rules with regard to claims addressing the issue of chronicity: The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well-grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Therefore, notwithstanding the veteran's showing of an inservice injury, and statements of post-service continuity of symptomatology, medical expertise is required to relate his disabilities etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498 (1995); at 506. Where a determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As stated above, in Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990), the Court defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). The test is an objective one which explores the likelihood of prevailing on the claim under the applicable standards. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. 38 U.S.C.A. § 5107 (West 1991). In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam), the Court stated that in order for a claim to be well-grounded there must be competent evidence of 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 inservice injury or disease and the current disability (medical evidence). The service medical records show no complaint, diagnosis or treatment for blackouts or for swelling of the face, hands and feet. In January 1991, the veteran was treated at a VA facility for complaints including swelling in her body. No diagnosis on this complaint was given. In November 1992, the veteran complained of 3 blackouts since September 1992, and a neurology consultation was scheduled. On private examination in December 1993, the veteran reported having syncope on three occasions in the last year. The examiner diagnosed, syncopy, the etiology of this is unclear. The veteran underwent a neurology evaluation in November 1994. She reported having blackouts. The examiner's impression was, probable syncope. On VA disability evaluation in November 1994, the veteran reported blacking out, at times due to headache pain, and that her eyes, hands and feet swell. No facial swelling was noted on examination, and no swelling of the hands or feet was found. The pertinent diagnosis was, syncopal episodes--possibly related to hypoglemic episodes. The veteran was examined by VA in June 1996. She reported having swelling of her hands, feet and face. She also reported having two episodes of syncope in the last 6 years. The finding was headaches with swelling of the face, hands and feet with intermittent episodes of syncope. On VA examination in May 1999, the examiner found normal arterial venous clinical examination at the present time; in the neck and in both upper and lower extremities. On VA neurological examination in May 1999, the veteran reported a history of blackouts. The finding was, history of syncope; no focal or neurologic deficit detectable. The record as a whole fails to include any evidence of current disabilities or a nexus between the service and any claimed current disability (medical evidence). Accordingly, the claims must be denied since they are not well grounded. Because the veteran's claim for service connection is not well grounded, VA is under no duty to further assist her in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991). The Board is aware of the veteran's statements offered in her behalf. While the veteran and other lay individuals are competent to provide evidence of visible symptoms, they are not competent to provide evidence that requires medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). There is no objective evidence of record in the form of medical treatment or examination records that show that the veteran currently has a disability manifested by blackouts or a current disability manifested by swelling of the face hands and feet. In addition, the veteran has provided no medical opinion linking any current disability to her military service. Absent evidence of any current disability which could be associated with service, the Board finds the claims are not plausible. Therefore, the Board finds that the veteran's claims for service connection are not well grounded. The veteran is free at any time in the future to submit evidence in support of her claims. Medical records of complaints and treatment for the disabilities in service or shortly thereafter would be helpful in establishing a well- grounded claim, as well as medical opinion linking any current findings with the veteran's military service . Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Service connection for headaches is granted. Service connection for a disability manifested by blackouts is denied. Service connection for a disability manifested by swelling of the face, hands, and feet is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals