Citation Nr: 1304532 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 04-23 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for migraine headaches. (The claim of entitlement to an initial rating in excess of 20 percent for osteoarthritis of the cervical spine is addressed in a separate Board document.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967, with confirmed service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of April 2003 and January 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, and St. Petersburg, Florida, respectively. The Veteran presently resides within the jurisdiction of the St. Petersburg, Florida, RO and it is the Agency of Original Jurisdiction (AOJ). In March 2009 and October 2012, the Veteran testified at a Board hearings at the RO on the issues of entitlement to service connection for tinnitus and migraine headaches. Transcripts of both hearings have been associated with the claims files. The Board notes that VLJs who participated in hearings must participate in making the final determination of the claim involved. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (2012). Therefore, in addition to the presiding VLJ at the October 2012 hearing, a second judge participated in the hearing with respect to the tinnitus and migraine headache claims. All three of the VLJs have who participated in the hearings have signed below. As the first hearing conducted in March 2009 did not consider the issue of entitlement to an initial rating in excess of 20 percent for osteoarthritis of the cervical spine and the second VLJ present for the October 2012 hearing was there solely for the purpose of participating in the decision on the tinnitus and migraine headache claims, a panel decision is not required on the initial rating claim. That claim is addressed in a separate document. The Board notes that, in addition to the paper claims files, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. At the October 2012 hearing, the Veteran's representative indicated that the Veteran would seek service connection for a heart condition. Also, in June 2009, a VA physician submitted a statement confirming that the Veteran has a diagnosis of coronary artery disease and ischemic cardiomyopathy. Again, the Veteran has confirmed service in the Republic of Vietnam. As such, the issue of entitlement to service connection for a heart disorder, including as due to in-service herbicide exposure, is clearly raised by the record, but it has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this claim, and it is REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Tinnitus is etiologically related to the Veteran's active service. 2. Migraine headaches are etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Migraine headaches were incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate the claims herein decided. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012) in regard to these issues. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran asserts he has had both tinnitus and migraine headaches ever since an in-service automobile accident. He also contends that his tinnitus may be due to in-service noise exposure. The Board has reviewed the evidence of record and finds, for the reasons expressed below, that both the Veteran's tinnitus and his migraine headaches are etiologically related to his active service. The Veteran's service treatment records (STRs) reflect that the Veteran entered service with complaints of "frequent or severe headache," as well as "ear, nose or throat trouble," as can be seen on his April 1965 Report of Medical History. The entrance examiner, however, did not note any defects upon entry into service on the entrance examination report. The STRs do indeed confirm that in April 1967 the Veteran was in an automobile accident, during which he struck the left side of his head on the windshield and injured his neck. While the clinical notes at the time of this accident do not suggest that there was any complaint of headache or ringing in the ears (tinnitus), they do confirm that the Veteran experienced an in-service incident during which he struck his head. His July 1967 separation examination report is without mention of either disability; however, the Report of Medical History, completed by the Veteran, shows that he again reported "frequent or severe headache," and "ear, nose or throat trouble." The examiner at that time noted that the positive answers were the same as those given at the time of entrance into service. There are no clinical notes in the STRs which show that the Veteran sought treatment related to either tinnitus or headaches during service. In November 2002, the Veteran reported for his first audiological treatment at a VA facility in Staten Island, New York, at which time he reported excessive noise exposure "from 105's" and also reported periodic tinnitus. In October 2004, the Veteran sought treatment from a private physician related to headaches. A November 2004 report from that physician shows that the Veteran reported having headaches on and off over the prior 30 years. A CT scan of the brain was noted as unremarkable, and the physician assessed the Veteran has having migraine headaches and prescribed Excedrin Migraine, in that the Veteran's heart disorder prevented prescription of other migraine medications. In December 2004, the Veteran underwent a VA neurological consultation, at which time he reported a history of chronic headaches since 1967. The physician reported that the Veteran "alluded to head trauma." In May 2005, the Veteran sought VA treatment for a "migraine headache (attack)." He also reported to this treatment provider that he had been having migraine headaches since 1967. Ongoing treatment for migraines is confirmed by way of a December 2006 notation in the record by the Veteran's VA physician, also noting that migraine medication is limited due to the Veteran's cardiac history. In March 2007, following the Veteran's move to Florida, he underwent a VA audiology consultation, at which time he again reported bilateral tinnitus, as well as a head injury in 1967 and in service noise exposure due to "machine guns and 105." A July 2007 psychiatric progress report again notes the Veteran as having a history of migraine headaches. In January 2008, at the time of a hearing before a Decision Review Officer (DRO) at the RO, the Veteran again suggested that he has tinnitus due to noise exposure, loud weapons and gunfire, during service. He also suggested that his headaches are due to the in-service automobile accident and again reported his head trauma in that accident. In a March 2009 written statement in support of his claims, the Veteran indicated that he has headaches and tinnitus and has "been suffering with this since 1967." At his Board hearing in the same month, the Veteran indicated that he did experience ringing in his ears in service. In March 2010, the Veteran underwent VA examinations of both his tinnitus and his headaches. As to the tinnitus, the Veteran reported to the examiner that he currently has bilateral tinnitus, which initially began in-service following his motor vehicle accident. The examiner answered "yes" to the question of whether the Veteran's tinnitus is as likely as not a symptom associated with hearing loss. The examiner went on to state that the Veteran's current tinnitus is less likely as not due to or a result of his active service. The basis for this opinion was that although the Veteran reported that tinnitus began in service, his STRs were silent as to tinnitus. Thus, the VA examiner seemingly disregarded the Veteran's account of the initial manifestation of tinnitus and regarded only what was documented in the STRs. The Veteran also underwent VA neurological examination in March 2010 to assess the nature and etiology of his headaches. The examiner summarized the Veteran's medical treatment related to headaches both during and since service. The examiner confirmed that the Veteran reported having headaches in service following a motor vehicle accident and that his headaches have been intermittent since. The examiner, however, went on to opine that the Veteran's migraines are not caused by, a result of, or aggravated by his service, because there is nothing in his records to suggest a chronic headache condition during service and because the first treatment after service was in 2004, many years following service. The examiner also suggested that the notation of headaches at the time of entry into service would be an indication that any current migraine disorder preexisted service. The Board notes, however, that the medical doctor examining the Veteran at the time of entry into service did not give any indication whatsoever of a history of migraines at that time. Moreover, by stating that there is nothing in the record to suggest that the Veteran had a chronic headache condition since service, it is clear that the examiner did not take into account the Veteran's lay statements when analyzing the Veteran's condition. Following the Board's remand in January 2011, additional VA medical opinions were obtained relating to both disabilities. As to tinnitus, in March 2012, a VA examiner again noted that the STRs are silent for tinnitus, and also noted the in-service motor vehicle accident. The examiner concluded that the Veteran's tinnitus was not likely caused by his service-connected PTSD or osteoarthritis of the cervical spine, and was not likely caused by the in-service automobile accident. The rationale was that "most tinnitus" is due to sensorineural hearing loss with resulting dysfunction in the auditory system. The examiner concluded that there were no complaints at the time of the motor vehicle accident and that there is no medical literature to support the delayed onset of tinnitus years after the head injury. This examiner completely disregarded the Veteran's ongoing and consistent contention that he has had ringing in his ears ever since the documented in-service accident. Had the lay statements been taken into account, the examiner could not have determined that the onset of tinnitus was "delayed." As to his headaches, another March 2012 VA examiner issued an opinion, which did not address the issue of whether the Veteran's headaches preexisted service, and indicated that an answer could not be provided without resorting to mere speculation. The examiner went on to explain that while there may be an indication that the Veteran's had headaches prior to service, there is no indication as to whether they were migraine headaches. The examiner went on to say, "there is no evidence of headaches, including migraines, during his active duty or for many years following separation." This examiner also completely disregarded the Veteran's ongoing and consistent contention that he has had such headaches since the automobile accident in service. Most recently, in October 2012, the Veteran again provided testimony at a Board hearing. He reported again at that time that he started having migraine headaches following the in-service motor vehicle accident in 1967. He also reported that he experienced ringing in the ears after the accident and that, "it just has been following me year after year." The Veteran is competent to state that he first experienced tinnitus and migraine type headaches in service at the time of a motor vehicle accident during which he struck his head and that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. The Board also observes that the in-service incident that the Veteran refers to, during which he did experience head trauma, is indeed confirmed in the STRs. Consistently throughout this claim and appeal, the Veteran has stated that he has experienced tinnitus and headaches ever since that incident. The Board notes that the U.S. Court of Appeals for Veteran's Claims (Court) has determined that it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997); citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Board acknowledges that the opinions of the VA examiners are against both of the Veteran's claims. However, the Board finds that these opinions are of little probative value as the examiners gave little rationale for the negative opinions. Moreover, as discussed above, the examiners for both tinnitus and headaches disregarded the Veteran's lay account of the initial manifestations and continuing symptoms of these claimed disabilities. Examiners simply are not free to ignore the Veteran's statements related to the timing and continuation of lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). In sum, the Board finds the various statements by the Veteran to VA and to his treating physicians, as well as the hearing testimony at both hearings as to these issues, to be competent, credible and persuasive evidence linking his current tinnitus and his current migraine headaches to service. The in-service event to which the Veteran links the onset of these symptoms is clearly shown in the STRs, and his reports of continuous symptoms since that time have been consistent throughout this claim and appeal. The Board finds that the evidence in favor of the claims is at least in equipoise with that against each claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for tinnitus and for migraine headaches is warranted. ORDER Entitlement to service connection for tinnitus is granted Entitlement to service connection for migraine headaches is granted. _______________________ _______________________ Shane A. Durkin K. Parakkal Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ Joaquin Aguayo-Pereles Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs