Citation Nr: 1046761 Decision Date: 12/14/10 Archive Date: 12/20/10 DOCKET NO. 05-24 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for headaches, to include as secondary to tinnitus. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing before the Board in August 2006. The Board denied the Veteran's claim in July 2008. In February 2009, the Veteran's attorney and the VA's General Counsel filed a joint motion with the Court of Appeals for Veterans Claims (CAVC) to vacate the Board's decision. CAVC remanded the Veteran's case to the Board. In September 2010, the Veteran's representative submitted additional medical evidence and indicated that the Veteran waived review of the evidence by the Agency of Original Jurisdiction (AOJ). Consequently, the Board will proceed with a decision on the merits of the claim. FINDING OF FACT The Veteran has chronic tension headaches that are caused by his service-connected tinnitus. CONCLUSION OF LAW Chronic tension headaches are caused by service-connected tinnitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.310(a) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009). However, that duty is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); 38 U.S.C.A. § 5103A(a)(2) (West 2002 & Supp. 2009). In view of the Board's favorable decision and full grant of the benefit sought on appeal in this instance, further assistance is unnecessary to aid the Veteran in substantiating his claim. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. If chronicity is not shown, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to pertinent symptomatology experienced since service. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, the regulations provide that service connection is warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2009). That includes any increase in disability that is proximately due to or the result of a service-connected disease of injury. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is seeking entitlement to service connection for headaches as secondary to his service-connected tinnitus. At a VA examination in October 2004, the Veteran reported chronic daily headaches for forty-nine years. He indicated that his headaches dated back to his military service where he was exposed to loud noises which resulted in hearing loss. Following a physical examination, the examiner diagnosed the Veteran with chronic tension headaches and opined that the Veteran's headaches were unrelated to his hearing loss. At an August 2007 VA examination, the Veteran reported that he developed hearing loss, tinnitus, and headaches while in service. He reported military noise exposure to such things as gunshots. He indicated that he had chronic daily headaches since his military service fifty-one years prior. Following a physical examination, the examiner diagnosed the Veteran with longstanding chronic tension-type headaches which were unrelated to his noise exposure. The examiner indicated that it was possible that noise exposure caused aggravation for the Veteran which in turn caused tension which then caused headaches. However, the examiner concluded that it was hard to make that ascertainment fifty years later. The examiner indicated that he had reviewed the claims file. In an October 2007 addendum the examiner indicated that the Veteran's headaches were not caused by or as a result of tinnitus. Associated with the claims file is a private evaluation from W. Gerchick, D.O., dated in July 2009. Dr. Gerchick indicated that he thoroughly reviewed the claims file and he included entries from pertinent medical records in his report. He diagnosed the Veteran with chronic tension headaches secondary to chronic tinnitus. Dr. Gerchick referenced several books written on the topic of tinnitus in providing a rationale for his opinion. He noted that tinnitus is frequently associated with headaches because tinnitus causes tension in the muscle of the neck which causes headaches. He also noted that frequent headaches are a common complaint in patients with tinnitus. At a March 2010 VA examination, the Veteran again reported exposure to loud noises in service which led to ringing in his ears and headaches. Following a physical examination, the examiner diagnosed the Veteran with tension headaches with added vascular components. The examiner noted that the Veteran had tinnitus since 1955 and headaches which manifested shortly after the tinnitus. The examiner opined, based on the Veteran's history and documentation in the records that it was at least as likely as not that the Veteran's headaches and tinnitus were the result of constant exposure to loud noises caused by the explosion of machine guns during basic training. The examiner indicated that it was uncertain whether the Veteran's tinnitus caused the headaches or whether the headaches were a separate entity. Having reviewed the complete record, particularly the medical opinions discussed above, the Board concludes that service connection for headaches on a secondary basis is warranted. Although two VA examiners indicated that the Veteran's headaches were unrelated to his hearing loss and tinnitus, neither examiner provided any rationale for their opinions. Conversely, Dr. Gerchick opined that the Veteran's headaches were secondary to his tinnitus and included a complete rationale for that opinion. He reviewed the claims file and included references to pertinent medical records. Moreover, Dr. Gerchick referenced several medical books in promulgating his medical opinion. The March 2010 examiner indicated that it was uncertain whether the Veteran's tinnitus caused the Veteran's headaches but indicated that the headaches were at least as likely as not the result of exposure to loud noises to which the Veteran was exposed in service. Consequently, the Board finds that the evidence is at least in equipoise as to whether the Veteran's headaches were proximately caused by his service-connected tinnitus. Therefore, service connection for headaches is warranted. Thus, the Board, with resolution of reasonable doubt in the Veteran's favor, will grant service connection for headaches. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for headaches is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs