Citation Nr: 0725546 Decision Date: 08/16/07 Archive Date: 08/22/07 DOCKET NO. 99-13 441A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for cluster headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from May 1971 to March 1973. He had subsequent service in the California Army National Guard (CANG) from December 1, 1983 to January 30, 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, wherein the RO denied service connection for cluster headaches. Jurisdiction was subsequently transferred to the San Diego, California RO. In November 2000, the veteran testified before the undersigned at the Board in Washington DC. A copy of the hearing transcript has been associated with the claims files. In January 2001, the Board remanded the veteran's claim for additional development. The requested development has been completed and the case has returned to the Board. FINDING OF FACT Current cluster headaches began during active service. CONCLUSION OF LAW Cluster headaches were incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. II. Laws and Regulations Service connection will be granted for disability that results from disease or injury during active military service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, No. 04-0534 (U.S. Vet. App., Jun. 15, 2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for a disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). III. Analysis The veteran contends, and has testified, that he has had headaches since the latter half of 1971 or 1972, when he injured his head, neck and leg after landing an airborne jump during advanced individual training (AIT) while stationed at Fort Benning, Georgia (the veteran's DD 214 reflects that he was awarded the Parachutist's Badge). He maintains that upon landing the jump, another paratrooper, who wore 120 pounds of equipment, smashed into him from the rear with a force that made it feel as though his neck was going to snap away from his shoulders. The veteran contends that he did not seek treatment for his injuries until five or six days after the jump, at which time he was stationed at Fort Bragg, having been assigned to the 82nd Airborne Division, Company B-1st, 504th Infantry. He alleges that following an evaluation at the Fort Bragg outpatient clinic, he was dropped from jump status. There is current evidence of current cluster headaches. In this regard, post-service VA and private treatment records, dating from 1975 to 2002, reflect findings of cluster headaches beginning in December 1985, at which time the veteran was seen at a VA outpatient clinic for right-sided musculoskeletal headaches; a possible vascular component was suspected. Records from the CANG show that the veteran continued to receive treatment for cluster headaches (see, CANG records, dated in June 1988, reflecting an assessment of stress/exercise induced headaches with no symptoms at that time). Subsequent VA and private treatment reports reflect that the veteran continued to receive treatment for cluster headaches. In addition, medical records from the veteran's period of active military service include a May 1972 treatment record; reflect that the veteran complained of headaches, albeit associated with back pain. The veteran is also competent to report that he had headaches in service. Thus, the second element of an in-service injury is satisfied. There is conflicting evidence as to whether there is a nexus between the current cluster headaches and service. In a November 2000 letter, J. S., M.D., related that he had treated the veteran for one year, but that the veteran had experienced severe persistent headaches since being injured in a parachute jump during service. Dr. J.S. opined that it was "within reasonable medical certainty" that the veteran's persistent and severe headaches were related to an injury sustained in association with a parachute jump during service. The veteran's reports of a continuity of symptomatology also support a finding of a nexus between current headaches and service. In addition, the veteran reported a two year history of bi-temporal headaches on a VA examination in August 1973, and a private physician reported in 1986 that he had treated the veteran since 1979, and his symptoms included migraines. In contrast, an examiner for VA concluded in January 2002 that the veteran's cluster headaches were unrelated to a 1972 paratrooping incident, as reported by the veteran. TheVA examiner buttressed his opinion by stating that it was extremely unlikely that the incident would have provoked a vascular/cluster/migraine headache-type syndrome. In this regard, the VA examiner noted that the vascular family of headaches were related to vascular dilation and constriction and would not be expected to be provoked by trauma, akin to that described by the veteran. The VA examiner in January 2002 also noted that the veteran had remained active for a two-year period after the incident and-contrary to that alleged by the appellant, he had had not received medical treatment for his headaches in 1984. The VA examiner also noted that the veteran had been involved in a November 1990 motor vehicle accident (see, Social Security Administration records, containing documentation that the veteran was involved in a November 1990 motor vehicle accident). The January 2002 VA medical opinion was provided after a review of the claims folder and pursuant to the Board's January 2001 remand directives, in conjunction with a physical evaluation, formal testing and observation of the appellant. The VA examiner provided medical rationale and bases for his opinion. On the other hand, the examiner for VA did not comment on the evidence of headache shortly after service, and the reports of a continuity of symptoms beginning in service. The evidence as to a nexus is in at least equipoise. Resolving reasonable doubt in the veteran's favor, the Board concludes that the requirements for service connection for cluster headaches have been satisfied. The appeal is, therefore, granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cluster headaches is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs