judge_norm: ROBERT E SULLIVAN

condition: headache

condition: tbi

text:
Citation Nr: 1030000
Decision Date: 08/11/10    Archive Date: 08/24/10

DOCKET NO.  09-22 003	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUES

1.  Entitlement to a disability rating in excess of 30 percent
for residuals of a traumatic brain injury, to include migraine
headaches and memory loss.

2.  Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities.

REPRESENTATION

Veteran represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1952 to
August 1955.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2008 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine,
which continued a 40 percent evaluation for chronic lumbar sprain
and a 30 percent evaluation for headaches, and denied entitlement
to a total disability rating based on individual unemployability
due to service-connected disabilities (TDIU); and a
September 2009 rating decision from the VA RO in Detroit,
Michigan, which granted service connection for tinnitus,
assigning a 10 percent evaluation, and continued a 30 percent
evaluation for headaches.  In December 2008 and October 2009, the
Veteran submitted notices of disagreement and subsequently
perfected his appeals in June 2009 and May 2010.  His case is
currently under the jurisdiction of the RO in Detroit, Michigan.

In April 2009, the Veteran submitted a letter from his private
physician, Dr. S. D., stating that the Veteran requires
assistance in his home with activities of daily living as a
result of his service-connected disabilities.  However, this
issue has not been addressed or adjudicated by the Agency of
Original Jurisdiction (AOJ).  Therefore, the Board does not have
jurisdiction over it, and it is referred to the AOJ for
appropriate action.

Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. � 20.900(c) (2009).  See 38 U.S.C.A.
� 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  The Veteran's residuals of a traumatic brain injury are
manifested by migraine headaches with characteristic prostrating
attacks occurring 3 to 4 times per month and complaints of mild
memory loss without objective evidence on testing.

2.  The evidence of record demonstrates that the Veteran is
unemployable based solely on his service-connected disabilities.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 30 percent
for headaches are not met.  38 U.S.C.A. �� 1155, 5107 (West 2002
& Supp. 2009); 38 C.F.R. � 4.124a, Diagnostic Code 8100 (2009).

2.  The criteria for a separate 10 percent disability rating for
memory loss are met.  38 U.S.C.A. �� 1155, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. � 4.124a, Diagnostic Code 8045 (2009).

3.  The criteria for TDIU have been met.  38 U.S.C.A. � 1155
(West 2002); 38 C.F.R. �� 3.340, 3.341, 4.16, 4.19, 4.25 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the
Veteran's claims file.  While the Board has an obligation to
provide reasons and bases supporting this decision, there is no
need to discuss, in detail, the evidence submitted by the Veteran
or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000) (the Board must review the entire record, but
does not have to discuss each piece of evidence).  The analysis
below focuses on the most salient and relevant evidence and on
what this evidence shows, or fails to show, on the claim.  The
Veteran must not assume that the Board has overlooked pieces of
evidence that are not explicitly discussed herein.  See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires
only that the Board address its reasons for rejecting evidence
favorable to the Veteran).

The Board must assess the credibility and weight of all evidence,
including the medical evidence, to determine its probative value,
accounting for evidence which it finds to be persuasive or
unpersuasive, and providing reasons for rejecting any evidence
favorable to the Veteran.  Equal weight is not accorded to each
piece of evidence contained in the record; every item of evidence
does not have the same probative value.  When all the evidence is
assembled, the Board is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with the
Veteran prevailing in either event, or whether a preponderance of
the evidence is against a claim, in which case, the claim is
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

As to the claim of entitlement to TDIU, this claim is being
granted herein, as discussed below.  As such, the Board finds
that any error related to the VCAA is moot.  See 38 U.S.C.A. ��
5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. � 3.159 (2009);
Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the Veteran's increased rating claim decided
herein, VA has met all statutory and regulatory notice and duty
to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. �� 3.102,
3.156(a), 3.159, 3.326 (2009).

Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify the
claimant and his representative, if any, of any information and
medical or lay evidence that is necessary to substantiate the
claim.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R.
� 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II), the Court held that VA must inform the
claimant of any information and evidence not of record (1) that
is necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.  Prior
to the initial adjudication of the Veteran's claim, a letter
dated in May 2009 fully satisfied the duty to notify provisions.
See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b)(1)
(2009); Quartuccio at 187.

Additionally, the May 2009 letter informed the Veteran of how VA
determines the appropriate disability rating and effective date
to be assigned when a claim is granted, consistent with the
holding in Dingess/Hartman v. Nicholson.  See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes VA's duty to assist has been satisfied.
The Veteran's service treatment records, VA treatment records,
Social Security Administration (SSA) records, and all obtainable
private treatment records are in the file.  The Veteran has at no
time referenced outstanding records that he wanted VA to obtain
or that he felt were relevant to the claim.

With respect to claims for increased ratings, the duty to assist
includes, when appropriate, the duty to conduct a thorough and
contemporaneous examination of the veteran.  See Green v.
Derwinski, 1 Vet. App. 121 (1991).  In addition, where the
evidence of record does not reflect the current state of the
veteran's disability, a VA examination must be conducted.  See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R.
� 3.327(a) (2009).

The RO provided the Veteran with a VA examination for his
headaches and residuals of a traumatic brain injury (TBI) most
recently in August 2009.  The examiner reviewed the Veteran's
claims file and provided a thorough physical examination.  Thus,
the Board finds that the August 2009 examination is adequate for
determining the disability rating for the Veteran's service-
connected residuals of a TBI, including headaches and memory
loss.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when
VA undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate).

Additionally, there is no evidence indicating that there has been
a material change in the severity of the Veteran's service-
connected residuals of a TBI since he was last examined.  See
38 C.F.R. � 3.327(a) (2009).  The duty to assist does not require
that a claim be remanded solely because of the passage of time
since an otherwise adequate examination was conducted.  See
VAOPGCPREC 11-95.  Thus, the Board finds that a new VA
examination is not necessary at this time.

As there is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure is
harmless.  See Mayfield, supra.

II. Merits of the Claims

A. TBI

Disability evaluations are determined by evaluating the extent to
which a veteran's service-connected disability adversely affects
his or her ability to function under the ordinary conditions of
daily life, including employment, by comparing his or her
symptomatology with the criteria set forth in the Schedule for
Rating Disabilities.  The percentage ratings represent as far as
can practicably be determined the average impairment in earning
capacity resulting from such diseases and injuries and the
residual conditions in civilian occupations.  Generally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbation or illness proportionate to the severity of the
several grades of disability.  See 38 U.S.C.A. � 1155 (West
2002); 38 C.F.R. � 4.1 (2009).  Separate diagnostic codes
identify the various disabilities and the criteria for specific
ratings.  If two disability evaluations are potentially
applicable, the higher evaluation will be assigned to the
disability picture that more nearly approximates the criteria
required for that rating.  Otherwise, the lower rating will be
assigned.  See 38 C.F.R. � 4.7 (2009).  Any reasonable doubt
regarding the degree of disability will be resolved in favor of
the veteran.  See 38 C.F.R. � 4.3 (2009).

Where service connection has already been established, and
increase in the disability rating is at issue, it is the present
level of the disability that is of primary concern.  See
Francisco v.  Brown, 7 Vet. App. 55 (1994).  However, in such
cases, when the factual findings show distinct time periods
during which a claimant exhibits symptoms of the disability at
issue and such symptoms warrant different evaluations, staged
evaluations may also be assigned.  See Hart v. Mansfield, 21 Vet.
App. 505 (2007).

The evaluation of the same disability under various diagnoses,
known as pyramiding, is generally to be avoided.  See 38 C.F.R. �
4.14 (2009).  The critical element in permitting the assignment
of several ratings under various diagnostic codes is that none of
the symptomatology for any one of the disabilities is duplicative
or overlapping with the symptomatology of the other disability.
See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all disability
ratings are then combined in accordance with 38 C.F.R. � 4.25
(2009).  However, the evaluation of the same "disability" or
the same "manifestations" under various diagnoses is not
allowed.  See 38 C.F.R. � 4.14 (2009).  A claimant may not be
compensated twice for the same symptomatology as "such a result
would overcompensate the claimant for the actual impairment of
his earning capacity."  See Brady v. Brown, 4 Vet. App. 203, 206
(1993) (interpreting 38 U.S.C.A. � 1155).  This would result in
pyramiding, contrary to the provisions of 38 C.F.R. � 4.14.
However, if a veteran has separate and distinct manifestations
attributable to the same injury, they should be compensated under
different diagnostic codes.  See Esteban, supra; see also Fanning
v. Brown, 4 Vet. App. 225, 230 (1993).

The Veteran has been service connected for an in-service TBI.
His residuals of a TBI are currently rated as 30 percent
disabling under Diagnostic Code 8100 for migraine headaches.

Under Diagnostic Code 8100, a 30 percent evaluation is assigned
for migraines with characteristic prostrating attacks occurring
on average once a month over the last several months.  See
38 C.F.R. � 4.124a, Diagnostic Code 8100 (2009).

A 50 percent evaluation is assigned for migraines with very
frequent completely prostrating and prolonged attacks, productive
of severe economic inadaptability.  Id.  The rating criteria do
not define "prostrating," nor has the Court.  Cf. Fenderson v.
West, 12 Vet. App. 119 (1999) (in which the Court quotes
Diagnostic Code 8100 verbatim but does not specifically address
the matter of what is a prostrating attack).  However, the Board
notes that, according to WEBSTER'S NEW COLLEGE DICTIONARY 909 (3d
ed. 2008), "prostration" is defined as "complete exhaustion."
Similarly, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed.
2007) defines "prostration" as "extreme exhaustion or
powerlessness."

Diagnostic Code 8045, addressing residuals of a TBI, states that
there are three main areas of dysfunction that may result from
TBI and have profound effects on functioning: cognitive (which is
common in varying degrees after TBI), emotional/behavioral, and
physical.  Each of these areas of dysfunction may require
evaluation.  See 38 C.F.R. � 4.124a, Diagnostic Code 8045 (2009).

Cognitive impairment is defined as decreased memory,
concentration, attention, and executive functions of the brain.
Executive functions are goal setting, speed of information
processing, planning, organizing, prioritizing, self-monitoring,
problem solving, judgment, decision making, spontaneity, and
flexibility in changing actions when they are not productive.
Not all of these brain functions may be affected in a given
individual with cognitive impairment, and some functions may be
affected more severely than others.  In a given individual,
symptoms may fluctuate in severity from day to day.  Evaluate
cognitive impairment under the table titled "Evaluation of
Cognitive Impairment and Other Residuals of TBI Not Otherwise
Classified."  Id.

Subjective symptoms may be the only residual of TBI or may be
associated with cognitive impairment or other areas of
dysfunction.  Evaluate subjective symptoms that are residuals of
TBI, whether or not they are part of cognitive impairment, under
the subjective symptoms facet in the table titled "Evaluation of
Cognitive Impairment and Other Residuals of TBI Not Otherwise
Classified."  However, separately evaluate any residual with a
distinct diagnosis that may be evaluated under another diagnostic
code, such as migraine headache or Meniere's disease, even if
that diagnosis is based on subjective symptoms, rather than under
the "Evaluation of Cognitive Impairment and Other Residuals of
TBI Not Otherwise Classified" table.  Id.

Evaluate emotional/behavioral dysfunction under � 4.130 (Schedule
of ratings-mental disorders) when there is a diagnosis of a
mental disorder.  When there is no diagnosis of a mental
disorder, evaluate emotional/behavioral symptoms under the
criteria in the table titled "Evaluation of Cognitive Impairment
and Other Residuals of TBI Not Otherwise Classified."  Id.

Evaluate physical (including neurological) dysfunction based on
the following list, under an appropriate diagnostic code: Motor
and sensory dysfunction, including pain, of the extremities and
face; visual impairment; hearing loss and tinnitus; loss of sense
of smell and taste; seizures; gait, coordination, and balance
problems; speech and other communication difficulties, including
aphasia and related disorders, and dysarthria; neurogenic
bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic
nerve dysfunctions; and endocrine dysfunctions.  Id.

The preceding list of types of physical dysfunction does not
encompass all possible residuals of TBI.  For residuals not
listed here that are reported on an examination, evaluate under
the most appropriate diagnostic code.  Evaluate each condition
separately, as long as the same signs and symptoms are not used
to support more than one evaluation, and combine under � 4.25 the
evaluations for each separately rated condition.  The evaluation
assigned based on the "Evaluation of Cognitive Impairment and
Other Residuals of TBI Not Otherwise Classified" table will be
considered the evaluation for a single condition for purposes of
combining with other disability evaluations.  Id.

Consider the need for special monthly compensation for such
problems as loss of use of an extremity, certain sensory
impairments, erectile dysfunction, the need for aid and
attendance (including for protection from hazards or dangers
incident to the daily environment due to cognitive impairment),
being housebound, etc.

The table titled "Evaluation of Cognitive Impairment and Other
Residuals of TBI Not Otherwise Classified" contains 10 important
facets of TBI related to cognitive impairment and subjective
symptoms.  It provides criteria for levels of impairment for each
facet, as appropriate, ranging from 0 to 3, and a 5th level, the
highest level of impairment, labeled "total."  However, not
every facet has every level of severity.  The Consciousness
facet, for example, does not provide for an impairment level
other than "total," since any level of impaired consciousness
would be totally disabling.  Assign a 100- percent evaluation if
"total" is the level of evaluation for one or more facets.  If
no facet is evaluated as "total," assign the overall percentage
evaluation based on the level of the highest facet as follows: 0
= 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.
For example, assign a 70 percent evaluation if 3 is the highest
level of evaluation for any facet.  Id.

There may be an overlap of manifestations of conditions evaluated
under the table titled "Evaluation Of Cognitive Impairment And
Other Residuals Of TBI Not Otherwise Classified" with
manifestations of a comorbid mental or neurologic or other
physical disorder that can be separately evaluated under another
diagnostic code.  In such cases, do not assign more than one
evaluation based on the same manifestations.  If the
manifestations of two or more conditions cannot be clearly
separated, assign a single evaluation under whichever set of
diagnostic criteria allows the better assessment of overall
impaired functioning due to both conditions.  However, if the
manifestations are clearly separable, assign a separate
evaluation for each condition.  See 38 C.F.R. � 4.124a,
Diagnostic Code 8045, Note (1) (2009).

Symptoms listed as examples at certain evaluation levels in the
table are only examples and are not symptoms that must be present
in order to assign a particular evaluation.  See 38 C.F.R.
� 4.124a, Diagnostic Code 8045, Note (2) (2009).

"Instrumental activities of daily living" refers to activities
other than self-care that are needed for independent living, such
as meal preparation, doing housework and other chores, shopping,
traveling, doing laundry, being responsible for one's own
medications, and using a telephone.  These activities are
distinguished from "Activities of daily living," which refers
to basic self-care and includes bathing or showering, dressing,
eating, getting in or out of bed or a chair, and using the
toilet.  See 38 C.F.R. � 4.124a, Diagnostic Code 8045, Note (3)
(2009).

The terms "mild," "moderate," and "severe" TBI, which may
appear in medical records, refer to a classification of TBI made
at, or close to, the time of injury rather than to the current
level of functioning.  This classification does not affect the
rating assigned under diagnostic code 8045.  See 38 C.F.R.
� 4.124a, Diagnostic Code 8045, Note (4) (2009).

A veteran whose residuals of TBI are rated under a version of �
4.124a, diagnostic code 8045, in effect before October 23, 2008
may request review under diagnostic code 8045, irrespective of
whether his or her disability has worsened since the last review.
VA will review that veteran's disability rating to determine
whether the veteran may be entitled to a higher disability rating
under diagnostic code 8045.  A request for review pursuant to
this note will be treated as a claim for an increased rating for
purposes of determining the effective date of an increased rating
awarded as a result of such review; however, in no case will the
award be effective before October 23, 2008.  For the purposes of
determining the effective date of an increased rating awarded as
a result of such review, VA will apply 38 CFR 3.114, if
applicable.  See 38 C.F.R. � 4.124a, Diagnostic Code 8045, Note
(5) (2009).

The Veteran was afforded a VA examination most recently in
August 2009.  At that time, he complained of headaches with
nausea, vomiting, light and noise sensitivity, reduced strength
and coordination, and dizziness.  He reported that he experienced
these headaches 3 to 4 times a month, lasting from hours to days.
He also reported mild memory impairment and ringing in his left
ear.  The examiner found that the Veteran exhibited normal
reflexes and motor activity.  He diagnosed the Veteran with a
moderate stable TBI during service with residuals of moderate,
recurrent migraine headaches, associated with light sensitivity,
nausea, vomiting, and dizziness.  With regard to the specific TBI
rating criteria, he found mild memory loss without objective
evidence on testing; normal judgment; routinely appropriate
social interaction; constant orientation to person, time, place,
and situation; normal motor activity; normal visual spatial
orientation; subjective symptoms that did not interfere with
work, instrumental activities of daily living, or work, family,
or other close relationships; one or more neurobehavioral effects
that did not interfere with workplace or social interaction;
ability to communicate by and comprehend spoken and written
language; and normal consciousness.

The Veteran was also previously examined for his headaches in
June 2008.  At that time, he reported severe, excruciating, and
throbbing headaches 2 to 3 times per month and lasting
approximately 4 to 6 hours.  The headaches were associated with
photophobia, blurring of vision, nausea, and occasional vomiting.
He denied any precipitating factors, an aura, major
incapacitating episodes or flare ups, and hospitalizations
related to his headaches.  The examiner diagnosed him with
migraine headaches.

The evidence of record does not indicate that the Veteran's
migraine headaches warrant a disability rating in excess of
30 percent under Diagnostic Code 8100.  While the Veteran does
experience prostrating attacks 3 to 4 times per month, there is
no indication that he experiences completely prostrating and
prolonged attacks, productive of severe economic inadaptability.
Notably, at his June 2008 VA examination, the Veteran denied any
major incapacitating episodes.  Additionally, his report of
migraine headaches 3 to 4 times per month does not rise to the
level of "very frequent," as required for a 50 percent
evaluation.  There is simply no evidence that the Veteran
experiences very frequent completely prostrating and prolonged
attacks that are productive of severe economic inadaptability.
Without such evidence, an increased rating of 50 percent is not
appropriate.

Although an increased rating is not warranted under Diagnostic
Code 8100, the Board finds that an additional 10 percent
evaluation under Diagnostic Code 8045 for memory impairment is
warranted.  As noted above, Diagnostic Code 8045 states that VA
should separately evaluate any residual with a distinct diagnosis
that may be evaluated under another diagnostic code, such as
migraine headache or Meniere's disease, even if that diagnosis is
based on subjective symptoms, rather than under the "Evaluation
of Cognitive Impairment and Other Residuals of TBI Not Otherwise
Classified" table.  See 38 C.F.R. � 4.124a, Diagnostic Code 8045
(2009).  Additionally, if the manifestations of TBI
manifestations are clearly separable, assign a separate
evaluation for each condition.  See 38 C.F.R. � 4.124a,
Diagnostic Code 8045, Note (1) (2009).  Thus, although the
Veteran is receiving a rating for TBI-related migraine headaches
under Diagnostic Code 8100, he may also receive a separate rating
for manifestations of his TBI that are clearly separable from his
migraine headaches.

The August 2009 VA examination report reflects that the Veteran
should be assigned a severity level of 0 for the facets of
judgment, social interaction, orientation, motor activity (with
intact motor and sensory system), visual spatial orientation,
subjective symptoms, neurobehavioral effects, communication, and
consciousness.  However, with regard to the memory, attention,
concentration, and executive functions facet, the Veteran's
symptomatology warrants the assignment of a severity level of 1.
Specifically, the August 2009 examiner noted that the Veteran had
a complaint of mild loss of memory (such as difficulty following
a conversation, recalling recent conversations, remembering names
of new acquaintances, or often misplacing items), attention,
concentration, or executive functions, but without objective
evidence on testing.  This matches the criteria for the
assignment of a level 1 impairment.  As mentioned above, a level
1 impairment is assigned a 10 percent evaluation under Diagnostic
Code 8045.  As the Veteran's complaints of memory loss are a
separate manifestation of his TBI and do not reflect the same
symptomatology as his already compensated migraine headaches, the
Board finds that a separate disability rating is warranted for
impairment of memory and would not result in the above-referenced
pyramiding.  See Esteban, supra; Fanning, supra.

Although an additional 10 percent rating is appropriate for
memory loss as a residual of the Veteran's in-service TBI, a
rating in excess of 10 percent for memory loss is not warranted
under Diagnostic Code 8045.  Notably, there is no evidence
showing that the Veteran exhibited objective evidence on testing
of mild impairment of memory, attention, concentration, or
executive functions, resulting in mild functional impairment.  As
such, the Board finds that a separate rating in excess of
10 percent for memory loss is not warranted.

The Board has also reviewed the remaining diagnostic codes
relating to headaches, neurological disabilities, and other
potential residuals of a TBI.  However, the claims folder
contains no medical evidence indicating that the Veteran's
residuals of a TBI are manifested by any symptoms other than
those reflected above.  As such, an increased rating cannot be
assigned under any other diagnostic code.

Further, there is no evidence indicating that the severity of
Veteran's service-connected residuals of a TBI have fluctuated
throughout the appeal period to warrant staged ratings.  Thus,
the assignment of staged ratings is not warranted.  See Hart,
supra.

In reaching the above-stated conclusions, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine.  However, as the preponderance of the evidence is
against the Veteran's claim of entitlement to a rating in excess
of 30 percent for migraine headaches, and in excess of 10 percent
for memory loss, that doctrine is not applicable.  See
38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102 (2009); see
also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

The Board has also considered the potential application of other
various provisions, including 38 C.F.R. � 3.321(b)(1), for
exceptional cases where schedular evaluations are found to be
inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application of
the schedule impractical.  See Fisher v. Principi, 4 Vet. App.
57, 60 (1993).  According to the regulation, an extraschedular
disability rating is warranted upon a finding that the case
presents such an exceptional or unusual disability picture with
such related factors as marked interference with employment or
frequent periods of hospitalization that would render impractical
the application of the regular schedular standards.  See
38 C.F.R. � 3.321(b)(1) (2009); Fanning v. Brown, 4 Vet. App.
225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set
forth a three-step inquiry for determining whether a veteran is
entitled to an extraschedular rating.  First, as a threshold
issue, the Board must determine whether the veteran's disability
picture is contemplated by the rating schedule.  If so, the
rating schedule is adequate and an extraschedular referral is not
necessary.  If, however, the veteran's disability level and
symptomatology are not contemplated by the rating schedule, the
Board must turn to the second step of the inquiry, that is
whether the veteran's exceptional disability picture exhibits
other related factors such as those provided by the regulation as
"governing norms."  These include marked interference with
employment and frequent periods of hospitalization.  Third, if
the first and second steps are met, then the case must be
referred to the VA Under Secretary for Benefits or the Director
of the Compensation and Pension Service to determine whether, to
accord justice, the veteran's disability picture requires the
assignment of an extraschedular rating.

The evidence of record does not reflect that the Veteran's
disability picture is so exceptional as to not be contemplated by
the rating schedule.  There is no unusual clinical picture
presented, nor is there any other factor which takes the
disability outside the usual rating criteria.  The Veteran's
complaints of headaches with light and noise sensitivity, nausea,
and vomiting are adequately contemplated by the rating schedule
and its use of the term "prostrating" attacks.  Additionally,
his complaints of impaired memory are specifically contemplated
by the criteria for evaluating cognitive impairment and other
residuals of TBI not otherwise classified.  As the Veteran's
disability picture is contemplated by the rating schedule, the
threshold issue under Thun is not met and any further
consideration of governing norms or referral to the appropriate
VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the
Veteran's service-connected disabilities present such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular standards
and to warrant the assignment of an extraschedular rating under
38 C.F.R. � 3.321(b)(1) (2009).  Thus, referral of this issue to
the appropriate VA officials for consideration of an
extraschedular evaluation is not warranted.

B. TDIU

The Veteran asserts that he is unemployable as a result of his
service-connected disabilities.

TDIU may be assigned where the schedular rating is less than
total when a disabled veteran is, in the judgment of the Board,
unable to secure or follow a substantially gainful occupation as
a result of service-connected disabilities.  If there is only one
such disability, this shall be ratable at 60 percent or more, and
if there are two or more disabilities, there shall be at least
one disability ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70 percent
disability or more.  See 38 C.F.R. � 4.16(a) (2009).

The Veteran is currently service-connected for: chronic lumbar
strain (40 percent disabling); migraine headaches (30 percent
disabling); tinnitus associated with headaches (10 percent
disabling); and residuals of TBI, including memory loss
(10 percent disabling).  His combined rating is 70 percent.  As
such, the Veteran's service-connected disabilities satisfy the
schedular criteria set forth in 38 C.F.R. � 4.16(a).

The Veteran is currently unemployed and has a number of
disabilities that severely impair his functioning and
employability, as noted above.

The Veteran retired from his position as a drive shaft
assemblyman in 1983.  At his most recent VA examination in
August 2009, he reported that he was eligible for retirement due
to age or duration of work.  However, the evidence indicates
that, regardless of the cause of his retirement, the Veteran is
now unemployable due to his service-connected disabilities.
Specifically, a June 2008 VA examiner indicated that the
Veteran's service-connected migraine headaches and moderate to
severe degenerative joint and disc disease of the lumbosacral
spine with radiculopathy prevent him from performing the duties
of gainful employment.

The only other medical evidence of record - a letter from the
Veteran's private physician, Dr. S. D. - to address the Veteran's
functional abilities tends to support the June 2008 VA examiner's
opinion.  The April 2009 letter from Dr. S. D. indicates that the
Veteran has difficulty with activities of daily living.  The
severity of symptomatology and functional limitation described by
Dr. S. D. is consistent with unemployability.  Further, there is
no evidence of record to contradict the conclusion that the
Veteran is unemployable due solely to his service-connected
disabilities.

As the evidence demonstrates that the Veteran is unemployable as
a result of his service-connected disabilities, the criteria for
TDIU have been met.  Accordingly, the Veteran's claim is granted.

ORDER

Entitlement to a disability rating in excess of 30 percent for
migraine headaches is denied.

Entitlement to a separate disability rating of 10 percent for
memory loss, as a residual of a traumatic brain injury, is
granted during the entire appeal period, subject to the laws and
regulations governing the award of monetary benefits.

TDIU is granted, subject to the laws and regulations governing
the award of monetary benefits.

____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ROBERT C SCHARNBERGER

disposition: dismissed

text:
Citation Nr: 1031000
Decision Date: 08/18/10    Archive Date: 08/24/10

DOCKET NO.  08-17 344	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUE

Whether the Veteran submitted a timely substantive appeal for
entitlement to an increased initial disability rating for
posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel

INTRODUCTION

The Veteran had active duty service from February 1963 to
February 1967.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a September 2004 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Seattle, WA.

FINDING OF FACT

In May 2009, the Veteran submitted a statement indicating that he
no longer wished to pursue an appeal the timeliness of his
substantive appeal for the issue of entitlement to an increased
disability rating for PTSD.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran, as it
relates to the issue of whether the Veteran submitted a timely
substantive appeal for entitlement to an increased disability
rating for PTSD have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5)
(West 2002); 38 C.F.R. � 20.204 (2009).

REASONS AND BASES FOR FINDING AND CONCLUSION

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.  Except for appeals withdrawn on
the record at a hearing, appeal withdrawals must be in writing.
38 C.F.R. � 20.204.  Withdrawal may be made by the appellant or
by his authorized representative.  38 C.F.R. � 20.204.

In May 2009, the Veteran submitted a statement indicating that he
no longer wished to pursue an appeal regarding the timeliness of
the submission of his substantive appeal for the issue of
entitlement to an increased disability rating for PTSD.
Additionally, in July 2010 the Veteran's representative moved
that the Board dismiss the matter.  Thus, no allegations of
errors of fact or law remain for appellate consideration of the
issue.  Accordingly, the Board does not have jurisdiction to
review the appeal of this issue and it is dismissed without
prejudice.

ORDER

The appeal as to the issue of whether the Veteran submitted a
timely substantive appeal for entitlement to an increased initial
disability rating for PTSD is dismissed.

____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: U R POWELL

disposition: denied

condition: gi

text:
Citation Nr: 1032000
Decision Date: 08/25/10    Archive Date: 09/01/10

DOCKET NO.  03-27 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Entitlement to service connection for headaches, to include
as secondary to service-connected posttraumatic stress disorder
(PTSD).

2.  Entitlement to service connection for a gastrointestinal
disability, to include as secondary to service-connected PTSD.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran and B.G.

ATTORNEY FOR THE BOARD

M. Donohue, Associate Attorney

INTRODUCTION

The Veteran served on active duty from March 1968 to April 1969.

These matters come before the Board of Veterans' Appeals (Board)
on appeal of a March 2003 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Nashville,
Tennessee which denied service connection for the disabilities at
issue on a direct-incurrence basis only.  A supplemental
statement of the case determination, dated in February 2010,
denied service connection for the disabilities at issue, to
include as secondary to service-connected PTSD.

The Veteran testified before the undersigned Veterans Law Judge
(VLJ) in July 2004 and August 2008.  Transcripts of those
hearings have been associated with the Veteran's VA claims
folder.

In March 2005, March 2007 and October 2008, the Board remanded
the Veteran's claims for additional procedural and evidentiary
development.

Referred issue

In October 2008, the Board referred the issue of whether new and
material evidence has been received to reopen a previously denied
claim of entitlement to service connection for bilateral hearing
loss disability to the RO for appropriate action.  This issue has
not yet been addressed by the RO and is again referred for
appropriate action.  See Godfrey v. Brown, 7 Vet. App. 398 (1995)
[the Board does not have jurisdiction of issues not yet
adjudicated by the RO].

FINDINGS OF FACT

1.  The evidence of record clearly and unmistakably demonstrates
the presence of a headache disability prior to service.

2.  The competent and credible evidence of record clearly and
unmistakably demonstrates that the Veteran's headache disability
was not permanently worsened during active service or as a result
of any incident of service.

3.  There has been no demonstration by competent medical, or
competent and credible lay evidence, that the Veteran's headache
disorder has been aggravated by his service-connected PTSD.

4.  The competent and credible evidence of record does not
support a finding that a chronic gastrointestinal disability
currently exists.

CONCLUSIONS OF LAW

1.  A pre-existing headache disability was not aggravated by
active service.  38 U.S.C.A. �� 1110, 1111, 1137, 1153, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.306, 3.310
(2009).

2.  A headache disability has not been aggravated by the
Veteran's service-connected PTSD.  38 C.F.R. � 3.310(b) (2009).

3.  A gastrointestinal disability was not incurred in or
aggravated by the Veteran's military service, nor is such
proximately due to, or aggravated by, a service-connected
disability.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303,
3.310 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In the interest of clarity, the Board will first discuss certain
preliminary matters.  The Board will then render a decision.

Stegall Considerations

In March 2005, the Board remanded the Veteran's claims in order
to attempt to obtain records of treatment for headaches, and a
stomach disability, prior to service, and to obtain a clinical
opinion as to the etiology of the Veteran's headaches and
gastrointestinal disability.  In March 2007, the Board remanded
the Veteran's claims in order to schedule him for a hearing with
a VLJ.  In October 2008, the Board remanded this case to the AMC
in order to fulfill the notice requirements of the Veterans
Claims Assistance Act of 2000 (the VCAA) and request the Veteran
submit, or authorize VA to obtain, his private treatment records.
The Board also requested that the AMC obtain the Veteran's
records from the Social Security Administration and provide him
with a medical examination.  The Veteran's claims were then to be
readjudicated.

The record reveals that the Veteran was afforded a hearing before
a VLJ in August 2008.  The AMC sent the Veteran a corrective VCAA
notice letter on December 31, 2008.  This letter also requested
the Veteran submit, or authorize VA to obtain, his private
treatment records.  The record reveals that the AMC obtained the
Veteran's records from the Social Security Administration and
provided him with a VA examination in December 2009.  The
Veteran's claim was then readjudicated in the February 2010 SSOC.
Thus, the Board's remand instructions have been fully complied
with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where
the remand orders of the Board are not complied with, the Board
errs as a matter of law when it fails to ensure compliance].

The VCAA

The Board has given consideration to the VCAA.  The VCAA includes
an enhanced duty on the part of VA to notify a claimant as to the
information and evidence necessary to substantiate claims for VA
benefits.  The VCAA also redefines the obligations of VA with
respect to its statutory duty to assist claimants in the
development of their claims.  See 38 U.S.C.A. �� 5103, 5103A
(West 2002).

The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist.  The Board will
now address these concepts within the context of the
circumstances presented in this case.

Standard of review

After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record.  See 38 U.S.C.A. �
7104(a) (West 2002).  When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.  See 38
U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2009).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court) stated
that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in order
to prevail."  To deny a claim on its merits, the preponderance
of the evidence must be against the claim.  See Alemany v. Brown,
9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Notice

Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.  38
U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b) (2009);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA
notice must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; and (3) that the claimant is
expected to provide.  VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).

In March 2006, the United States Court of Appeals for Veterans
Claims (Court) issued its decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court
in Dingess held that the VCAA notice requirements of 38 U.S.C.
� 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements of
a "service connection" claim.  As previously defined by the
courts, those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date of the disability.  Upon receipt of an application
for "service connection," therefore, VA is required to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and evidence
not previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application.  This includes notice
that a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.

In the present case, VA issued VCAA notice letters to the Veteran
in February 2003, May 2005 and December 2008.  These letters
informed the Veteran of what evidence was required to
substantiate his claims on direct-incurrence and secondary
service connection bases.  The letters also informed him of his
and VA's respective duties for obtaining evidence. The December
2008 letter informed the Veteran as to the law pertaining to the
assignment of a disability rating and effective date as the Court
required in Dingess.

As VCAA notice was not completed prior to the initial AOJ
adjudication of the claims, such notice was not compliant with
Pelegrini.  However, since the case was readjudicated thereafter,
there has been no prejudice to the Veteran in this regard.  See
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In short, the record indicates that the Veteran received
appropriate notice pursuant to the VCAA.

Duty to assist

In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary to
substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim.  The law provides that the assistance
provided by VA shall include providing a medical examination or
obtaining a medical opinion when such an examination or opinion
is necessary to make a decision on the claim.  An examination is
deemed "necessary" if the record does not contain sufficient
medical evidence for VA to make a decision on the claim.  See
38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2009).

The Board finds that reasonable efforts have been made to assist
the Veteran in obtaining evidence necessary to substantiate his
claims, and that there is no reasonable possibility that further
assistance would aid in substantiating such claims.  In
particular, the record contains the Veteran's service treatment
records, VA outpatient medical records, private medical records,
and records from the Social Security Administration.  The Veteran
has been provided multiple VA examinations.

As the Board will discuss in detail in its analysis below, the
Veteran was provided with a VA examination in December 2003 and
two examinations in November 2005. Medical opinions were obtained
in February 2009, July 2009 and December 2009.  The reports from
these examinations and opinions reflect that the examiners
reviewed the Veteran's past medical history and recorded his
current complaints.  The Board notes that while the December 2003
VA examiner indicated that the Veteran's medical records were not
available for review, his examination report clearly indicates
that he reviewed the Veteran's claims folder.  Similarly, while
the November 2005 VA neurological examination report does not
clearly state that the examiner reviewed the claims folder, the
report clearly indicates that such a review was conducted.
Supporting rationale was provided for the opinions proffered.
Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  As such, the
Board finds that the examinations and opinions are adequate for
adjudication of the appeal.

The Board has carefully reviewed the Veteran's statements and
concludes that he has not identified further evidence not already
of record.  The Board has also reviewed the medical records for
references to additional treatment reports not of record, but has
found nothing to suggest that there is any outstanding evidence
with respect to the Veteran's claim.

Based on the foregoing, the Board finds that all relevant facts
have been properly and sufficiently developed in this appeal and
no further development is required to comply with the duty to
assist the Veteran in developing the facts pertinent to his
claim.  Essentially, all available evidence that could
substantiate the claim has been obtained. There is no indication
in the file that there are additional relevant records that have
not yet been obtained.

The Board additionally observes that all appropriate due process
concerns have been satisfied.  See 38 C.F.R. � 3.103 (2009).  The
Veteran has been accorded the opportunity to present evidence and
argument in support of his claims.  He exercised the option of a
personal hearing and was afforded one in July 2004 and August
2008 as detailed in the Introduction.

Accordingly, the Board will proceed to a decision.

Relevant law and regulations

Service connection - in general

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 2002); 38 C.F.R. � 3.303 (2009).  Service
connection may also be granted for any injury or disease
diagnosed after discharge, when all the evidence, including that
pertinent to service, establishes that the disease or injury was
incurred in service.  See 38 C.F.R. � 3.303(d) (2009).

In order to establish service connection for the claimed
disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus
between the claimed in-service disease or injury and the current
disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999);
see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14,
2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007);
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The
determination as to whether these requirements are met is based
on an analysis of all the evidence of record and the evaluation
of its credibility and probative value.  See Baldwin v. West, 13
Vet. App. 1, 8 (1999).

Secondary service connection

Service connection may be established on a secondary basis for a
disability that is proximately due to, the result of, or
aggravated by, a service-connected disease or injury.
See 38 C.F.R. � 3.310 (2009); see also 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.
See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In order to prevail on the issue of entitlement to secondary
service connection, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability; and
(3) medical nexus evidence establishing a connection between the
service-connected disability and the current disability.  See
Wallin v. West, 11 Vet. App. 509, 512 (1998).

Aggravation

A veteran is presumed to be in sound condition when examined and
accepted into the service except for defects or disorders noted
when examined and accepted for service.  38 U.S.C.A. �� 1111,
1137 (West 2002).  The presumption is rebutted where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not aggravated
by such service. Id.

To rebut the presumption of sound condition under 38 U.S.C.A. �
1111, the Department of Veterans Affairs (VA) must show by clear
and unmistakable evidence both that the disease or injury existed
prior to service and that the disease or injury was not
aggravated by service.  The claimant is not required to show that
the disease or injury increased in severity during service before
VA's duty under the second prong of this rebuttal standard
attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370
F.3d 1089 (Fed. Cir. 2004).

The law further provides that, if a preexisting disorder is
noted, the veteran cannot bring a claim for service incurrence
for that disorder, but the veteran may bring a claim for service-
connected aggravation of that disorder. Paulson v. Brown, 7 Vet.
App. 466, 468 (1995).  In that case, the provisions of 38 U.S.C.A
� 1153 and 38 C.F.R. � 3.306 apply.  Jensen v. Brown, 19 F.3d
1413, 1417 (Fed. Cir. 1994).  If a presumption of aggravation
under section 1153 arises, due to an increase in a disability in
service, the burden shifts to the government to show a lack of
aggravation by establishing by clear and unmistakable evidence
"that the increase in disability is due to the natural progress
of the disease." 38 U.S.C.A. � 1153; 38 C.F.R. � 3.306; Jensen,
19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed.
Cir. 2004).

1.  Entitlement to service connection for headaches, to
include as secondary to service-connected PTSD.

Analysis

The evidence of record indicates that the Veteran was diagnosed
with mixed headaches during the November 2005 VA examination.  He
was granted service connection for PTSD in a November 2007 rating
decision.

During the August 2008 hearing, the Veteran testified that he
suffered a head injury prior to enlisting.  Specifically, the
Veteran stated that while working at a service station, a truck
tire blew up and fractured his skull.  See the hearing
transcript, pages 5-6.  He indicated that he was hospitalized and
developed headaches, but repeatedly stated that these headaches
had resolved prior to joining the Marine Corps.  Id; see also the
July 2004 hearing transcript, page 17 [documenting the Veteran's
assertion that he had headaches and dizziness for six months
after his accident and prior to enlisting.]

In contrast to the statements made at the August 2008 hearing,
the Veteran reported to the February 2009 VA examiner that his
headache disability began when he fractured his skull several
years before he enlisted.  Similarly, during a September 2003
hearing with a Decision Review Officer, the Veteran testified
that he had headaches prior to service but that they became worse
while he was in service.  See the September 2003 hearing
transcript, pages 6-7.

The Veteran's service treatment records document that he was
treated for headaches on several occasions wherein he stated that
his symptoms began when he fractured his skull prior to
enlistment.  See in-service treatment records dated March 1968
and August 1969; see also a February 1969 congressional inquiry
response.  While the Board recognizes that the Veteran's March
1968 enlistment examination does not diagnose a pre-existing
headache disability, a physical examination did reveal a four
inch scar on the Veteran's skull.  The Veteran is competent to
report having experienced headaches since prior to service, and
in light of the objective evidence of record consistent with such
assertions, the Board also finds him to be credible in this
regard.  The Board finds the statements the Veteran made to his
treating health care providers during service to be more credible
than his recent statements.  Although the Veteran denied ever
having a head injury or broken bones when he completed a self-
report of medical history at the time of his enlistment
examination, such is inconsistent with other assertions of
record, including sworn testimony, as well as objective clinical
evidence of record.

In view of the foregoing, the Board finds that clear and
unmistakable evidence of record establishes that the Veteran
entered service with a headache disability.  However, in order to
rebut the statutory presumption of soundness, there must also be
clear and unmistakable evidence that the pre-existing headache
disability was not chronically aggravated by service.  See 38
U.S.C.A. �� 1111, 1132 (West 2002).

Based on the evidence outlined below, the Board has reached the
conclusion that the record, viewed as a whole, shows by clear and
unmistakable evidence that the Veteran's headache disability was
not aggravated during service.

In August 2005, S.K.M., M.D. reported that the Veteran claimed to
have "head trauma induced under several situations and [that]
there could be a relationship from repeated concussions and
external head trauma" to the Veteran's headache disability.  In
July 2007, Dr. S.K.M. stated that the Veteran's headaches are
related to his military service.  However, he did not provide any
explanation for his August 2005 or July 2007 findings.  See
Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the
failure of the health care provider to provide a basis for
his/her opinion goes to the weight or credibility of the
evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999)
[the probative value of a physician's statement is dependent, in
part, upon the extent to which it reflects "clinical data or
other rationale to support his opinion."]  Moreover, the use of
speculative language such as how there "could be a
relationship" between the Veteran's military service and his
headache disability is troubling since the Court has held that
medical opinions which are speculative, general or inconclusive
in nature cannot support a claim. See Obert v. Brown, 5 Vet. App.
30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).

During the November 2005 VA examination, the Veteran stated that
he fractured his skull prior to joining the Marine Corps and that
this injury resulted in severe headaches.  After reviewing the
Veteran's claims folder and examining the Veteran, the VA
examiner concluded, in a May 2006 addendum, that "there is
absolutely no relationship" between the Veteran's service and
his headache disability.  The examiner specified that his
headaches continued from his pre-service injury and "they would
be occurring whether or not he had been in service and [his
military service has] absolutely nothing to do with" his
disability.

In August 2008, L.P., M.D. reported that the Veteran fractured
his skull in 1965 but did not indicate whether this injury
resulted in his headache disability.  Dr. L.P. also reported that
the Veteran was hit in the head several times by his drill
sergeant and has been suffering from recurrent headaches for most
of his life.  After diagnosing the Veteran with recurrent
headaches, Dr. L.P. indicated that the Veteran's headaches are
"secondary to injuries sustained during" the Veteran's military
service.  Based on this report, it is unclear as to whether Dr.
L.P. believed that the Veteran entered service with a pre-
existing headache disability or whether his current headache
disability had its onset during military service.  (As noted
above, the Board has found that clear and unmistakable evidence
of record establishes that the Veteran's headache disability had
its onset prior to active duty service, despite the Veteran's
conflicting statements as to the date of onset of his
disability.)  Based on the ambiguous nature of this report, the
Board places little probative weight on Dr. L.P.'s opinion.

After examining the Veteran and reviewing the claims folder, the
February 2009 VA examiner noted that the Veteran's headache
disability began prior to his military service when he fractured
his skull.  Based on this pre-existing injury, the VA examiner
opined that the Veteran's headache disability was less likely as
not permanently aggravated by his active duty.  However, the
examiner did not provide any explanation for this conclusion.
See Hernandez-Toyes, supra.  Accordingly, the Board affords
little probative weight to this medical opinion.

In March 2009, a VA physician T.C.P., M.D., stated that the
Veteran has "a long standing history of headaches" which
"began shortly after he was discharged from the military in
1969."  Although the March 2009 report indicates that the VA
physician reviewed the Veteran's claims folder, he did not
comment on the skull fracture the Veteran suffered prior to
enlistment or the Veteran's conflicting reports of headaches
which had their onset prior to service.  Indeed, in an August
2009 addendum to the July 2009 VA examination, a VA examiner
observed that the Veteran has presented different "histories to
different practitioners and his [self-reported] history does not
stay consistent throughout [the] C-file."  After noting the
nature of injury sustained by the Veteran prior to enlistment,
the VA examiner stated that Dr. T.C.P.'s lack of discussion
regarding the Veteran's pre-service injury was a significant
oversight.  In light of the service treatment records which
document the Veteran's complaints of headaches developing prior
to service, the Board agrees that the March 2009 statement is
inadequate.

The Veteran was provided with an additional VA examination in
July 2009.  In this report, the VA examiner reviewed the
Veteran's claims folder, provided a thorough examination and
indicated that the Veteran's "headaches are not caused by a
relationship to military stress."

In a December 2009 medical opinion, after reviewing the evidence
of record, a VA examiner stated that the Veteran's pre-existing
headache disability was not aggravated during military service.
The examiner specifically noted that the record provides "clear
and convincing evidence of headaches continuing from" his skull
fracture prior to military service.  After noting that the
Veteran suffered a head injury after service, the examiner stated
that the Veteran has multiple reasons for his chronic headaches
on a mechanical basis relating to his pre-military and post-
military history and concluded that it is not at least as likely
as not that the Veteran's headaches were permanently aggravated
by his military service.

In adjudicating a claim, the Board is charged with the duty to
assess the credibility and weight given to evidence. See Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523
U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d
1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals
for the Federal Circuit, citing its decision in Madden,
recognized that that Board had inherent fact-finding ability.
For the reasons stated above, the Board finds that the August
2005 and July 2007 reports of Dr. S.K.M, the August 2008 opinion
of Dr. L.P., the February 2009 VA examiner's opinion, and the
March 2009 VA physician statement, are of limited probative
value.  As indicated above, these opinions are either unsupported
by reasons or bases, result to speculation, are ambiguous, or are
based on facts which are unsupported by the evidence of record.

In contrast, the Board places great weight of probative value on
the medical opinions provided in the November 2005 and July 2009
VA examinations and the December 2009 VA medical opinion.  As
noted above, the November 2005 found that the Veteran's military
service did not aggravate the Veteran's preexisting headache
disability when he stated that the Veteran's military service had
"absolutely nothing to do with his" current disability.  The
December 2009 VA examiner stated that the Veteran has multiple
reasons for his chronic headaches on a mechanical basis relating
to his pre-military and post-military history and that it was not
at least as likely as not that the Veteran's headaches were
permanently aggravated by his military service.

As the Board has found that clear and unmistakable evidence of
record establishes that chronic headaches pre-existed service,
and were not chronically aggravated by service, the presumption
of soundness as to a headache disability on entrance to service
is rebutted.  38 U.S.C.A. � 1111.  Accordingly, the Veteran
cannot bring a claim for service connection for headaches on a
direct-incurrence basis, but he may bring a claim for aggravation
of that disorder.  See Wagner, supra.

As outlined above, the record clearly and unmistakably
establishes that the pre-existing headaches were not aggravated
by active service.  38 U.S.C.A. �1153.  As such, no further
discussion is warranted in this regard.

With respect to a relationship between the Veteran's headache
disability and his service-connected PTSD, in support of his
claim, the Veteran has submitted internet articles describing
migraines and PTSD.  The Board notes that medical treatise
evidence can, in some circumstances, constitute competent medical
evidence.  See Wallin v. West, 11 Vet. App. 509, 514 (1998); see
also 38 C.F.R. � 3.159(a)(1) [competent medical evidence may
include statements contained in authoritative writings such as
medical and scientific articles and research reports and
analyses]. However, the Internet articles submitted by the
Veteran are of a general nature and do not contain any
information or analysis specific to the Veteran's case.  While
the Veteran has submitted an article indicating that headaches in
patients with PTSD tend to be more frequent and disabling, the
December 2009 VA examiner, who reviewed the Veteran's claims
folder, stated that the Veteran's headaches have not been
aggravated by his PTSD.   Further, in an August 2009 addendum to
the July 2009 VA examination report, the examiner stated that
"psychiatric literature cannot support" the theory that the
Veteran's headache disorder could be related to his service-
connected PTSD.  Based on the general nature of the internet
articles, the treatise evidence submitted by the Veteran are of
no probative value. See Obert; Tirpak, both supra.

To the extent that the Veteran and his representative now contend
that his headache disability was aggravated during service or due
to his PTSD, any such statements offered in support of the
Veteran's claim do not constitute competent medical evidence and
cannot be accepted by the Board.  See Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992); see also 38 C.F.R. � 3.159(a)(1)
[competent medical evidence means evidence provided by a person
who is qualified through education, training, or experience to
offer medical diagnoses, statements, or opinions].  While the
Veteran is competent to testify that his headache disability has
gotten worse, he is not competent to identify what caused the
increase in symptomatology.  See Routen v. Brown, 10 Vet. App.
183, 186 (1997); Espiritu supra.  In this capacity the Board
notes that the Veteran injured his head following service in a
mining accident.  See the December 2009 VA examination.

For the reasons and bases expressed above the Board finds that
the preponderance of the evidence is against a finding that the
Veteran's pre-existing headache disability was aggravated during
service or by his service-connected PTSD.  38 U.S.C.A. � 1153; 38
C.F.R. � 3.310.  The benefit sought on appeal is accordingly
denied.

2.  Entitlement to service connection for a
gastrointestinal disability, to include as secondary to
service-connected PTSD.

With respect to the first Hickson and Wallin elements, a current
disability, the evidence of record contains several diagnostic
reports and VA examinations that focus on the Veteran's
symptomatology.  As noted above, the Board is charged with the
duty to assess the credibility and weight given to evidence. See
Madden supra.

The Veteran was afforded a VA examination in December 2003.
After reviewing the Veteran's claims folder and providing a
thorough examination of the Veteran, the examiner noted that an
upper GI series revealed "some thickening of the folds around
the greater curvature of the stomach" but that "the exam was
unremarkable."  While the examiner stated that the thickening of
the folds around the Veteran's stomach represented a
"questionably abnormal finding  . . .  which was suggestive of
probable hypertrophic gastritis," the VA examiner could not
render an opinion without resorting to speculation.  See Obert,
Libertine, both supra.

In an August 2005 statement, Dr. S.K.M. indicated that the
Veteran had ulcer disease.   While the doctor indicated that
stress and a prior infection could have caused the ulcer disease,
Dr. S.K.M. did not provide any rationale or factual basis for the
diagnosis.  Accordingly, the Board affords little probative
weight to Dr. S.K.M.'s conclusory statement.  See Hernandez-
Toyens supra; Bloom, supra.

The record also contains a February 2006
esophagogastroduodenoscopy (EGD) report from the Endoscopy Center
of Northeast Tennessee which did not identify a gastrointestinal
disease.

The Veteran was provided with VA examinations in November 2005
and February 2009.  Both examiners reviewed the Veteran's claims
folder and extensive testing of the Veteran was conducted during
the November 2005 examination.  While the Veteran's complaints of
nausea were noted by both examiners, he was found not to have an
active gastrointestinal disease.  See June 2006 Addendum to the
November 2005 VA examination report.

In an August 2008 statement, L.P., M.D. stated that he has been
treating the Veteran for many years and the Veteran has been
having recurrent nausea and abdominal pain.   He documented that
the Veteran had "recurrent abdominal pain . . . secondary to
injuries sustained in the Marine Corps.  Although Dr. L.P.
indicated that the Veteran has recurrent abdominal pain, his
report did not provide a diagnosis.  See Sanchez-Benitez v. West,
13 Vet. App. 282 (1999) [symptoms, such as pain, without a
diagnosed or identifiable underlying malady or condition, do not,
in and of themselves, constitute a disability for which service
connection may be granted].

VA obtained an additional medical opinion in February 2009
wherein a VA examiner documented the Veteran's complains of
nausea and diarrhea.  The examiner noted that the Veteran has
been seen by a gastroenterologist and received an endoscopy and
colonoscopy without significant findings.  He was not diagnosed
with a current disability.  In a September 2009 addendum to this
opinion, the VA examiner observed that the Veteran "has been
seen in the past by GI for acute pancreatitis noted via increase
of lipase and amylase [in] 2006."  The Board is cognizant that
Veteran was noted to have elevated amylace and lipase in the June
2006 addendum to the November 2005 VA examination.  However,
follow-up testing revealed normal amylase and the November 2005
VA examiner  (who noted the increased levels of lipase and
amylase) stated that the Veteran did not have a current
disability.  Since the February 2009 VA examiner did not comment
on the Veteran's normal amylase levels which were identified
after repeat testing, the Board places little probative value on
this opinion.  See Hernandez-Toyens supra; Bloom, supra.

Finally, in December 2009, the Veteran's claims folder was
reviewed by a VA examiner.  In the report, the VA examiner noted
that a testing of the Veteran's gastrointestinal tract has not
revealed any evidence of a disability.

The question of whether the Veteran currently has a
gastrointestinal disability is essentially medical in nature.
The Board is prohibited from exercising its own independent
judgment to resolve medical questions.  See Colvin v. Derwinski,
1 Vet. App. 171, 175 (1991).  While the Veteran is competent to
testify that he has nausea and diarrhea, he is not competent to
attribute these symptoms to a chronic gastrointestinal
disability.  See Espiritu supra.  The evidence of record does not
indicate that the Veteran or his wife have the requisite medical
experience or education to opine complex medical questions such
as whether the Veteran's gastrointestinal symptoms are
manifestations of a current disability.  Moreover, the Board
notes that symptoms, such as nausea and diarrhea, without a
diagnosed identifiable underlying malady or condition, do not, in
and of themselves, constitute a disability for which service
connection may be granted]. See Sanchez-Benitez v. West, 13 Vet.
App. 282 (1999).

In light of the above, the Board finds that there has not been
demonstration by competent medical, and competent and credible
lay, evidence of record that the Veteran has a current
gastrointestinal disability.  In the absence of a current
disability, service connection may not be granted.  See Degmetich
v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown,
155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be
granted if the claimed disability does not exist].  Accordingly,
Hickson and Wallin element (1) have not been met and the claim
fails on this basis alone.

In the absence of the claimed disability there is no need to
discuss the remaining two Hickson or Wallin elements, or whether
service-connected PTSD has resulted in, or chronically
aggravated, any current gastrointestinal disability.

In conclusion, for the reasons and bases expressed above the
Board finds that the preponderance of the evidence is against the
Veteran's claim of entitlement to service connection for a
gastrointestinal disability, to include as secondary to PTSD.
The benefit sought on appeal is accordingly denied.

ORDER

Entitlement to service connection for headaches, to include as
secondary to service-connected PTSD, is denied.

Entitlement to service connection for a gastrointestinal
disability, to include as secondary to service-connected PTSD, is
denied.

____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs