Citation Nr: 1324883	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  10-37 938	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss. 

2.  Entitlement to service connection for residuals of head trauma, including headaches. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Counsel


INTRODUCTION

The Veteran had active duty from January 1965 to December 1968 as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 

The issues arise from November 2008 and January 2010 rating decisions of the Regional Office (RO) in North Little Rock, Arkansas.  

The Veteran appeared before the undersigned at a travel board hearing in April 2011.  A transcript of the proceeding is of record.  Following the hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 

One of the issues on appeal includes entitlement to service connection for residuals of a head trauma in service.  The Veteran contends that his primary residual is migraine headaches.  See Transcript [T.] page 5.  Notably, service connection for headaches was denied in March 2002 and he did not appeal the decision.  The Board notes that the present claim is not characterized as a petition to reopen a claim of service connection for headaches as the claim requires de novo review.  In this regard, additional evidence received since the March 2002 denial includes the Veteran's pertinent service treatment records, which were not previously considered in the March 2002 rating decision.  See 38 C.F.R. § 3.156(c).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The competent medical evidence of record supports a finding that the Veteran's current migraine headache disability began in service and has continued since service.  


CONCLUSION OF LAW

A migraine headache disability was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this decision, the Board grants the Veteran's claim for service connection.  This award represents a complete grant of the benefits sought on appeal.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.




II.  Service Connection 

The Veteran contends that he has headaches that began in service.  Specifically, he believes that his headaches are a residual of head trauma he incurred in service.  For the reasons explained below, the Board finds that the Veteran's migraine headache disability began in service and the claim is granted herein. 

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304.

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Regarding Shedden element (1), current diagnosis, the evidence does not support a finding of a traumatic brain injury; however, there is no dispute that the Veteran has a current diagnosis of migraine headaches.  See December 2001 and December 2009 VA examination reports.  

Regarding Shedden element (2), in-service incurrence, the Veteran has alleged two separate service incidents that he believes may be related to his current migraine headaches.  Reserve treatment records confirm that he was treated for a mild head injury following an active drill exercise in Guam in November 1989.  The Veteran has also offered sworn testimony that while training in Guam, during a period of ACDUTRA, in November 1989, he was participating in two exercises that resulted in amnesia and/or unconsciousness.  In the first exercise, he hid in a car trunk and reported experiencing amnesia for 2-3 hours after he exited the trunk.  In the other exercise, he was participating in a line formation and the next thing he knew, he woke up and was told he had passed out for about four hours.  T. page 4.  The Veteran has also offered sworn testimony that he was attacked in a bathroom shortly after boot camp, hitting his chin and knocked unconscious, during his first period of active service.  T. page 3.  Service treatment records confirm that he was treated for headaches in March and April 1966.  Further, there is an indication that there may be outstanding service hospital records surrounding the bathroom attack, however, the Veteran is not prejudiced by the fact that the records have not been obtained as the Board is herein granting the Veteran's claim.)  As service treatment records and Reserve treatment records have shown treatment for headaches and/or head injury in service, Shedden element (2), in-service incurrence, has been met. 

Regarding Shedden element (3), a relationship between the in-service occurrence and the current disorder, there is persuasive evidence that the Veteran's current migraine headache disability is related to the service symptoms surrounding the November 1989 ACDUTRA exercises.  Specifically, the December 2009 VA examiner opined that the Veteran's current migraine headaches are related to service, in that they began in service and there has been no post-military head trauma or injury that contributes to the present condition.  The December 2009 VA examination report also contains the Veteran's reports of headaches in service and continuity of headache symptomatology that has been getting progressively worse since the 1989 ACDUTRA exercises.  The examiner noted that the Veteran had headaches in service as a radio operator and later following the 1989 ACDUTRA maneuvers.  The examiner noted that the Veteran's headaches have been getting progressively worse since the 1989 ACDUTRA exercises.  Further, the examiner considered the Veteran's report that he had headaches during his service as a radio operator but focused on the Veteran's report that his headaches began again and continued, getting progressively worse, following the 1989 ACDUTRA exercises in which he lost consciousness and experienced memory loss.

As the December 2009 VA examiner's opinion is based in part on the Veteran's statements of continuity of symptomatology since ACDUTRA in 1989, the Board has considered the competency and credibility of the Veteran's statements.  The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Barr v. Nicholson, 21 Vet.App. 303, 307 (2007).  The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

In this case, the Veteran is competent to report continuous headache symptoms since the November 1989 ACDUTRA exercises as this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Similarly, the Veteran's sister (who is also a nurse) is competent to report her observations that the Veteran reported experiencing headaches during his first period of service as well as during service in Guam.  She is also competent to note her observation that the Veteran's headaches have continued in severity and frequency.  The Board finds that the competent reports of record regarding the Veteran's and his sister's observations of continuity of symptomatology are also credible.  The Board acknowledges that there are three Reports of Medical History dated subsequent to the November 1989 incidents, in which the Veteran denied frequent or severe headaches.  See Reports of Medical History dated in November 1990, November 1995, and November 1997.  However, the Board finds the Veteran's sworn testimony, and the statement of his sister, more probative and affords the benefit of the doubt that his headaches were ongoing during this time.  Further, the Board emphasizes that the December 2009 VA examiner noted no post-military head trauma or injury that would contribute to the Veteran's current migraine disability.  As the statements of continuity of symptomatology, on which the December 2009 VA opinion is based in part, are competent and credible, the Board affords the December 2009 VA examiner's opinion a high probative value.

The Board acknowledges that the December 2009 VA examiner opined that the Veteran's headaches began in service, meaning in 1989, without review of the 1966 treatment records which showed treatment for headaches during the Veteran's first period of service.  However, the Board finds that this new evidence regarding service treatment in 1966 does not contradict the December 2009 VA examiner's finding that the Veteran's current migraine headache disability began in association with the 1989 ACDUTRA exercise.  Specifically, a review of the Veteran's separation examination in 1968 noted normal head and neurological systems and the next indication of a head injury and/or headaches, was in November 1989, during the ACDUTRA exercise in question.  Moreover, as discussed above, the December 2009 VA examiner considered the Veteran's lay statements that he had headaches in service, as a radio operator.  

The Board also acknowledges that a December 2001 VA examiner opined that the Veteran's current migraine disability was not related to service.  The December 2001 VA examiner considered the Veteran's reports that his headaches began in radio school and based the negative opinion on the fact that "[t]here is no evidence that operating a radio is probable cause of a persisting migraine."  The Board finds that the December 2001 VA opinion is not adequate as it failed to fully consider the fact that the Veteran's headaches began in service, regardless of the in-service cause.  Additionally, the December 2001 VA examiner failed to consider the continuity of the Veteran's symptoms since the 1989 ACDUTRA exercises.  For these reasons, the Board finds the December 2001 VA examination report to be inadequate and affords the opinion no probative value. 

The Board further acknowledges that the RO denied the Veteran's claim in January 2010, in part, because it reasoned that the Veteran's headache disability pre-existed service and was not permanently aggravated by service.  To the extent that there is a question as to whether the Veteran had a pre-existing headache disability that was aggravated by his military service, the Board notes that Veteran was found to be normal on his service entrance examination and thus the presumption of soundness applies.  This presumption cannot be rebutted unless there is clear and unmistakable evidence that the migraine headache disability pre-existed, and was not aggravated by, service.   38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The Board finds that there is not clear and unmistakable evidence that the Veteran's migraine headache disability pre-existed service.  Although his reported medical history from service entrance indicated that he had experienced frequent or severe headaches in the past, there is no evidence indicating the Veteran had migraine headaches, or any type of chronic headache disorder, prior to service.

As the Board has determined that all of the lay statements concerning the continuity of the same symptoms since the 1989 ACDUTRA exercises are competent and credible, the December 2009 VA examiner's positive nexus opinion based on those statements is afforded a high probative value and outweighs the December 2001 VA examiner's opinion.  Accordingly, the Board finds that service connection for a migraine headache disability is warranted.


ORDER

Service connection for a migraine headache disability is granted. 

REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim for entitlement to a compensable rating for bilateral hearing loss can be properly adjudicated.  The Veteran's bilateral hearing loss is currently evaluated as noncompensable under Diagnostic Code 6100.  His claim for an increased rating was received in July 2008.  

In April 2011, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge.  The hearing testimony indicates that his hearing loss disability has increased in severity since the time of the last VA examination in August 2009. 

The Veteran was last afforded a VA audiological examination in August 2009. Since that time, a private audiological examination submitted by the Veteran appears to reflect some decreased hearing acuity based on audiometry decibel levels and speech discrimination.  See private audiologist, Dr. H's, Audiological Examination dated in September 2009.  Dr. H. diagnosed moderate to severe sensorineural hearing loss bilaterally.  Unfortunately, Dr. H.'s audiogram was not interpreted.  As there is an indication that the Veteran's hearing disability has worsened since the August 2009 VA audiological examination, the Board finds that another VA examination is warranted. 

Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.  See 38 U.S.C.A. § 5103A(d); Suttman v. Brown, 5 Vet. App. 127, 138   (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991).  Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455   (2007), the Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this regard, the Board notes that the August 2009 VA examiner failed to comment upon the functional effects caused by the Veteran's hearing loss. 

Thus, based on the foregoing, the Veteran must be afforded a new VA audiological examination to determine the nature and severity of his current bilateral hearing loss.

Accordingly, the case is REMANDED for the following action:

1.  Request any and all non-duplicative VA and private audiological records pertaining to the Veteran since October 2008 and associate them with the claims file.  Offer the Veteran the opportunity to complete an authorization and consent form to request any private records, including interpretation of the September 2009 private audiogram from Dr. H.  Any negative responses should be associated with the claims file. 

2.  Afford the Veteran a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss.  All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of pure tone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, provide the pure tone threshold average, and should also state the results of the word recognition test, in percentages, using the Maryland CNC test. 

Finally, the audiologist should also comment on whether the Veteran's bilateral hearing loss results in any unusual or exceptional impairment in his daily functioning in occupational and/or social settings. 

3.  When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs