Citation Nr: 0002981 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 96-50 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for dizziness. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from January 1969 to August 1970. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case or within the remainder of the one-year period following notification of the decision being appealed. The present case arises from a March 1995 rating action, with which the veteran expressed his disagreement in December 1995. A statement of the case was issued in October 1996, and the veteran's appeal was perfected upon the receipt at the RO of a VA Form 9 (Appeal to Board of Veterans' Appeals) in November 1996. Thereafter, a supplemental statement of the case was issued in February 1999 (in the interim, another claim was being developed and was eventually granted), and the case was forwarded to the Board in Washington, DC. Pursuant to the veteran's request as set forth on the VA Form 9 he submitted, a hearing before a member of the Board was scheduled to take place in Washington, in October 1999. Shortly before the hearing, however, the veteran wrote to the Board asking that his hearing be postponed, in order to give him time to recover certain documents he apparently wished to present, but which had evidently been damaged in flooding. This motion for a new hearing date was granted and, later in the month, the veteran was advised that his hearing was re- scheduled to take place in December 1999. On the date of the scheduled hearing in December, the Board received a memorandum from the veteran's representative, advising that the veteran's wife had informed the representative, the day before, that the veteran would be unable to attend the scheduled hearing, due to health problems he was experiencing. The representative also took the opportunity to include the veteran's contentions regarding the matter on appeal, and to point out that the veteran had been experiencing problems in scheduling an examination. This communication did not include any request for a second re-scheduling of the hearing, nor did it include any complaints that the October hearing had been re-scheduled for a date earlier than the veteran had originally requested (i.e., a postponement of the October 1999 hearing date until after January 1, 2000). Since the veteran did not appear for his re-scheduled hearing, and neither he nor his representative has requested that any further hearing be scheduled, the Board concludes that the veteran no longer desires to appear at a hearing, and we will proceed to address the merits of the veteran's claim on the current record. FINDINGS OF FACT The veteran's assertion that he has headaches and dizziness which are related to service, is not supported by medical evidence that would render the claims for service connection for those disorders plausible under the law. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for headaches. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted a well-grounded claim for service connection for dizziness. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSIONS The threshold question to be answered regarding these claims is whether they are well grounded. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If they are not, they must fail and there is no further duty to assist in their development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (formerly known as the United States Court of Veterans Appeals) which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). See Morton v. West, 12 Vet.App. 477, 480 (1999) (noting that the Federal Circuit, in Epps v. Gober, supra, "rejected the appellant's argument that the Secretary's duty to assist is not conditional upon the submission of a well-grounded claim"). The Court of Appeals for Veterans Claims has also held that, in order to establish that a claim for service connection is well-grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a link or a connection) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). See Elkins v. West, 12 Vet.App. 209 (1999) (en banc). "Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Under applicable criteria, service connection may be granted for disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A review of the veteran's service medical records reflects that he was seen in August 1969, complaining of a one-week history of frontal headaches. At that time, it was noted that the veteran reported having had similar episodes in civilian life, and medications were provided. Thereafter, no further complaints in this regard were noted until October 1969. At that time, records show that the veteran was seen again for frontal headaches, as well as dizziness. He was again provided medication. In January 1970, he was seen yet again, with complaints of headaches and dizziness, and was again provided medication. The diagnostic impression was "rule out" tension headaches. Later that month, the veteran again complained of persistent headaches, and he was referred to a medical battalion for evaluation. This evaluation, which apparently took place during the end of January and the beginning of February 1970, revealed that the veteran's complaints consisted of intermittent pain in the frontal area of his skull, with occasional periods of vertigo, and were accompanied by a stuffy feeling in the nose and head. It was indicated that it was thought the headaches were "anxiety-based," and that tranquilizers were provided. A medical entry dated February 4, 1970, indicated that the veteran was considered to be "much improved" and the headaches had become infrequent. The diagnostic impression was tension headaches. Thereafter, the record shows that the veteran was seen on two occasions in April 1970, complaining of dizziness and headaches, for which he was prescribed Valium. Records dated in May 1970 show that he was seen regarding anxiety complaints, which apparently included headaches. The last service medical record reflecting any complaints of headaches was dated in July 1970. Those complaints appear, however, to have been attributed to an upper respiratory infection which the veteran was experiencing at that time. The report of the examination conducted in connection with the veteran's discharge from service, in August 1970, revealed that there were no abnormal findings noted on clinical evaluation. In connection with the veteran's current claim for benefits, postservice medical records, dated between 1970 and 1999, have been associated with the claims file. Although the veteran has contended that he has experienced headaches and dizziness ever since service, these postservice treatment records do not show any complaints of headaches prior to 1984, or complaints of dizziness prior to 1985, some 14 or 15 years after the veteran's separation from service. Moreover, while the veteran's report of experiencing these symptoms since service is included in several postservice records, the various diagnoses entered to account for the veteran's post service complaints, including vertigo, migraine headaches, cluster headaches, and tension headaches, have not been shown by any of the medical evidence to be linked to any of the veteran's inservice complaints. Indeed, one physician who examined the veteran in June 1998 wrote: Regarding whether the patient's symptoms are an extension of those from the service records during 1970 to comment on whether or whether or not these indeed are of the same source would be purely speculation . . . . Under the circumstances described above, it is the Board's view that the veteran has failed to satisfy the threshold requirement for submitting a well-grounded claim for service connection for headaches and dizziness, as set out in the judicial precedent in Caluza, supra, and as imposed by 38 U.S.C.A. § 5107(a). The veteran has failed to present competent evidence of a nexus (that is, a link or a connection) between his inservice complaints and current disability. In view of this, there is no duty to assist the veteran further in the development of his claims, and the Board does not have jurisdiction to adjudicate them. Boeck v. Brown, 6 Vet.App. 14 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). Accordingly, as claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, the claims for service connection for headaches and dizziness must be denied. In reaching this decision, the Board is mindful of the veteran's contention that his current complaints of dizziness and headaches are related to similar complaints noted in his service medical records, and we respect his sincerely held belief in this regard. We must note, however, that the veteran cannot meet the burden of presenting evidence of a well-grounded claim by merely presenting his own views. This is because, as a lay person, he is not competent to offer medical opinions. Clearly, whether headache and dizziness complaints noted in service medical records are related to similar complaints first noted in records dated many years after service, would require medical expertise. It is this type of medical evidence that has not been presented in this case. (In this regard, see Voerth v. West, 13 Vet.App. 117, 120 (1999) ("Unsupported by medical evidence, a claimant's personal belief, no matter how sincere, cannot form the basis of a well-grounded claim."). See also Bostain v. West, 11 Vet.App. 124, 127 (1998), citing Espiritu, supra; Carbino v. Gober, 10 Vet.App. 507, 510 (1997); aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Routen v. Brown, 10 Vet.App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). See also McManaway v. West, 13 Vet.App. 60, 66 (1999), wherein the Court noted that, even though the veteran had asserted continuity of symptomatology for a particular disorder since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition, and the veteran has not submitted any such evidence.") As previously set forth, absent medical evidence of a nexus between the veteran's inservice complaints and his postservice complaints, evidence of well-grounded claims for service connection for headaches and dizziness has not been presented, and the appeal must be denied. ORDER Service connection for headaches is denied. Service connection for dizziness is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals