Citation Nr: 0710799	
Decision Date: 04/12/07    Archive Date: 04/25/07

DOCKET NO.  05-36 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUES

1.  Entitlement to service connection for low back disorder.

2.  Entitlement to service connection for headaches.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

P. Childers, Associate Counsel


INTRODUCTION

The veteran had active military service from September 1969 
to September 1971.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Louis, Missouri.  


FINDINGS OF FACT

1.  At his hearing before the undersigned and in 
correspondence dated on September 26, 2006, prior to the 
promulgation of a decision in the appeal, the veteran 
notified the Board that he wanted to withdrew his appeal from 
the denial of service connection for a low back disorder. 

2.  The veteran's suffers from recurrent frontal throbbing 
headaches that began during service and that have been 
ongoing since the veteran's release from service.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal on 
the issue of service connection for low back disorder by the 
appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) 
(West 2002); 38 C.F.R. §§ 20.202, 20.204 (2006).

2.  A headaches disability was incurred during active 
military service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service connection for low back disorder

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
which fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board promulgates 
a decision.  38 C.F.R. § 20.202 (2006).  Withdrawal may be 
made by the appellant or by his or her authorized 
representative.  38 C.F.R. § 20.204 (2006).  The appellant 
has withdrawn his appeal concerning the issue of service 
connection for a low back disorder and, hence, there remain 
no allegations of errors of fact or law for appellate 
consideration.  Accordingly, the Board does not have 
jurisdiction to review the appeal as to this issue and it is 
dismissed.

II.  Service connection for headaches

The veteran seeks service connection for migraine headaches 
which he says began during service.  He reports that these 
headaches have "continued through [his] life since 
service."

Service connection will be granted if it is shown that the 
veteran suffers from a disability contracted in the line of 
duty while in active military service.  38 C.F.R. §§ 3.303, 
3.304.  That an injury or disease occurred in service alone 
is not enough; there must be a chronic disability resulting 
from that injury.  If there is no showing of a resulting 
chronic condition in service, then a showing of continuity of 
symptomatology after service is required to support a finding 
of chronicity.  38 C.F.R. § 3.303(b).  

Service medical records (SMRs) dating from October 1969 to 
June 1971 document repeated complaints of and treatment for 
"severe" headaches and migraines.  These headaches are 
described as "throbbing, frontal headaches" lasting for 
several days.  In fact, SMRs document one particular stretch 
of headaches that lasted for five straight months.  Another 
record notes that the veteran "never had them prior to 
induction."  

VA treatment records dating from January 2004 confirm a 
present diagnosis of cephalgia.  Treatment records dated in 
August 2005 contain the remark "He does have a lot of 
headaches."  Although the record contains no post-service 
medical evidence of headaches prior to 2004, the veteran has 
provided sworn testimony that he has had headaches since his 
release from service.  He also testified that he self 
medicated these headaches because he was unable to afford 
health care.  

In view of the veteran's protracted symptomatology during 
service and current cephalgia, and in the absence of any 
evidence to the contrary, the Board finds the veteran's sworn 
testimony of headaches since his release from service to be 
sufficient for a finding of continuity of symptomatology.  38 
C.F.R. § 3.303(b); see also Buchanan v. Nicholson, 451 F.3d 
1331, 1335 (Fed. Cir. 2006) (Lay evidence is one type of 
evidence that must be considered, if submitted, when a 
veteran's claim seeks disability benefits.  Nothing in the 
regulatory or statutory provisions requires both medical and 
competent lay evidence; rather, they make clear that 
competent lay evidence can be sufficient in and of itself).  
Accordingly, and resolving all reasonable doubt in favor of 
the veteran, service connection for headaches is warranted.  
38 C.F.R. §§ 3.102, 3.303.  

The RO has substantially satisfied the duty to notice and 
assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a).  To the extent that there may be any deficiency of 
notice or assistance, there is no prejudice to the appellant 
given the favorable nature of the Board's decision. 







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ORDER

The appeal concerning entitlement to service connection for 
low back disorder is dismissed.

Service connection for headaches is granted.




____________________________________________
CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs