Citation Nr: 1117469 Decision Date: 05/06/11 Archive Date: 05/17/11 DOCKET NO. 07-34 667A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for headaches, to include as secondary to service-connected hearing loss and/or tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active military duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for headaches as secondary to his service-connected hearing loss and/or tinnitus. He asserts that he was exposed to acoustic trauma during service and that he has had severe tinnitus and hearing loss since that time. He also asserts that these problems, including in particular his tinnitus, produce headaches. The Board has determined that additional development is required for the reasons discussed below. The Veteran's exposure to acoustic/concussive trauma in-service is not in dispute. Service treatment records (STRs) show that in July 1970 the Veteran was evaluated for complaints of hearing loss and tinnitus. He was assigned two temporary profiles restricting him from habitual or frequent exposure to loud noises or firing of weapons. Moreover, the Veteran is currently service-connected for bilateral hearing loss and tinnitus secondary to the known acoustic trauma which he suffered in service. Although the STRs are entirely negative for complaints or treatment of symptoms associated with headaches, of particular importance to the Board is the fact that the Veteran's assertions of headaches since service are competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Also of significance is a July 2007 opinion from a private physician, who noted the Veteran's past medical history of chronic and continuous ringing in his ears, hearing difficulty, and headaches since exposure to acoustic trauma during service. The physician essentially concluded that the Veteran's hearing loss and tinnitus were secondary to noise trauma and that the continued headaches were also secondary to the original injury. However, this medical opinion is somewhat weakened by the fact that there is no indication that the physician reviewed any relevant evidence in the claims file. In November 2007, the Veteran underwent a VA neurological examination to determine the presence and etiology of any headache disorder. The examiner diagnosed cephalagia, but was unable to establish its cause/etiology without resorting to mere speculation. This VA opinion is, however, inadequate. Under Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (Court) held that an opinion where the examiner is unable to provide an etiological opinion without resort to mere speculation will not be adequate except in those limited instances where required information is missing or can no longer be obtained, or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. Those circumstances have not been demonstrated in this case. Moreover, the November 2007 VA opinion does not sufficiently address the question of whether the Veteran has additional disability resulting from aggravation of his nonservice-connected headaches by his service-connected hearing loss and tinnitus. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that 38 C.F.R. § 3.310 authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a nonservice-connected disability by a service-connected disability). Therefore, the Board must remand this matter for a medical opinion to determine whether the Veteran's headaches are caused or aggravated by his service-connected hearing loss and tinnitus. In rendering this requested opinion, the examiner should provide a discussion of the frequency, severity and duration of the Veteran's headaches. In this regard, the Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform to the Court's decision in Allen. The RO will need to assess the secondary service connection claims on appeal with consideration of this regulatory amendment-particularly because the regulatory revision that adds a "baseline level of severity" requirement for the non-service-connected disability. See 38 C.F.R. § 3.310(b) (2010). In addition, ongoing pertinent treatment records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any medical records, not already in the claims file, pertaining to post-service treatment or evaluation for his headaches, or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. If the necessary information and authorization for release of information form is submitted by the Veteran where necessary, the AMC/RO should attempt to procure any such available treatment records and associate them with his claims folder. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this in the claims file. All such available records should be associated with the claims folder. See 38 U.S.C.A. § 5103A(b). 2. Schedule the Veteran for an appropriate VA examination. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, including the frequency, severity and duration of the headaches. The examiner should then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's service-connected hearing loss and tinnitus aggravate, contribute to, or accelerate his headache disability. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected headaches to the extent possible. In answering this question, the examiner should consider the order in which the Veteran's hearing loss/tinnitus and headaches were diagnosed based on the evidence of record, if such a chronology is helpful in determining the etiological relationship between these two conditions. If the headaches cannot be regarded as having been caused or aggravated by the hearing loss and tinnitus, the examiner should specifically indicate so and then provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the type, degree, and pattern of any currently shown headache disorder is consistent with the documented acoustic trauma during the Veteran's period of military service or whether such a causal relationship is unlikely (i.e., a probability of less than 50 percent). Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Complete rationale for all opinions should be provided in the examination report. 3. Thereafter, readjudicate the issue of entitlement to service connection for headaches, on a direct basis and as secondary to the service-connected hearing loss and/or tinnitus. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case containing notice of all relevant actions taken on this claim, to include a summary of the evidence as well as the applicable law and regulations considered pertinent to this issue on appeal. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).