Citation Nr: 1335318 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-27 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for migraines, to include as secondary to service connected disability. 3. Entitlement to service connection for cervical spine (neck) disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1984 to November 2006. These matters come before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to service connection for migraines, to include as secondary to service connected disability, and entitlement to service connection for a cervical spine (neck) disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a hearing loss disability for VA purposes. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a hearing loss disability causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in September 2007. VA has a duty to assist the appellant in the development of the claim. The claim file includes service treatment records (STRs), VA and private medical records, and the statements of the Veteran in support of the claim. The evidence reflects that the Veteran filed a claim for Social Security Administration (SSA) benefits in approximately 2007. The Board is mindful of the decision in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), in which the court noted that the government need not obtain records in every case in order to rule out their relevance and stated that such decision would be akin to a determination that all medical records must be obtained. Id. at 1323. Similarly, it is not the case that a record's relevance can always be determined without reviewing the record itself. "The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records." Id. In the present claim, the evidence of record does not indicate that SSA records would help the Veteran substantiate his claim for entitlement to service connection for a bilateral hearing loss disability. The August 2007 correspondence from the Veteran's attorney reflects concerns with regard to sitting, standing, and walking; it is negative for references to hearing loss. In addition, as discussed in further detail below, the clinical evidence of record reflects that the Veteran has normal hearing. Thus, the Board finds that VA does not have a duty to attempt to obtain SSA records. The Board has considered the statements and perused 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 for which VA has a duty to obtain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that an adequate opinion has been obtained. The claim file includes clinical reports from September 2006 and June 2008. The reports are predicated on audiology testing results and the Veteran's reported acoustic trauma exposure. Adequate rationale has been provided. 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 the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection for hearing loss disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 claim. The Veteran avers that he has bilateral hearing loss disability as a result of active service, to include exposure to weapon firing. The Veteran's DD 214 reflects that his primary specialty in service was as a cannon crewmember. The evidence also reflects that the Veteran was issued hearing protection in service (See 1995 reference audiogram which reflects that triple flange earplugs had been issued to the Veteran is size small.) An essential element of a claim for service connection is evidence of a current disability. The Board finds, for the reasons noted below, that this element has not been met, and therefore, service connection is not warranted. As noted above, the Veteran separated from service in November 2006. A September 2006 contract examination report, two months prior to separation, is of record. The Board notes that VA audiology testing is normally evaluated by air conduction testing; however, the September 2006 examiner provided both air and bone conduction test results. The report reflects that the Veteran's hearing acuity, upon air conduction pure tone audiometry test, was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 LEFT 0 0 0 10 10 The examiner opined that a bone conduction study was better than an air conduction study to reflect the Veteran's hearing loss. The Veteran's hearing acuity, upon bone conduction pure tone audiometry test, was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 10 5 LEFT 0 0 5 10 5 The word recognition score was 100 percent for the right ear and 100 percent for the left ear using the Maryland CNC word list test. The examiner stated that the Veteran does not have a diagnosis of hearing loss, does not claim hearing loss, and the examination revealed the Veteran had no hearing problems. The Veteran's claim for bilateral hearing loss disability was received by VA in January 2007. A February 14, 2007 "Wellness Treatment Center" past medical history report reflects that the Veteran did not check that he had any hearing impairment; although he did check numerous other complaints unrelated to his hearing. A March 2007 primary outpatient care note reflects that the Veteran had no hearing problems. An October 2007 VA neurology record reflects that the Veteran's hearing was intact to "finger rub." The Veteran underwent a VA examination June 2008. The June 2008 record reflects that the Veteran's hearing acuity, upon pure tone audiometry test, was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 10 15 LEFT 5 15 15 15 15 The word recognition score was 96 percent for the right ear and 96 percent for the left ear using the Maryland CNC word list test. The examiner stated that "[t]oday's test results indicate hearing within normal limits bilaterally. Type A tympanograms were obtained bilaterally indicating normal middle ear function at the time of the test. Inter test reliability was considered good." The examiner opined that "[h]earing was within normal limits for this exam. In 2006, hearing was within normal limits out to 6000Hz. This frequency is not used for VA ratings purposes. As his hearing is within normal limits for this exam, it is felt that since no hearing loss is present, hearing loss is not related to military service." A January 2010 VA audio progress note is of record. It reflects that the Veteran was seen for a routine hearing evaluation. He reported that approximately one month earlier, his right "TM perforated and he had bloody drainage from his right ear." It was noted that audiometrics "continued to indicated [sic] essentially normal hearing in both ear at 250-8000Hz, with excellent discrimination ability." The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, not all hearing loss constitutes hearing loss "disability" for VA purposes. In the present case, not only does not Veteran not have a hearing loss disability for VA purposes, but he does not even have abnormal hearing under Hensley. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. To this extent, the Board finds that the Veteran is competent to report that he has current difficulty with hearing. However, the specific issue in this case, the presence of a hearing loss disability pursuant to 38 C.F.R. § 3.385, is based on objective findings and falls outside the realm of common knowledge of a lay person. Audiometric and word recognition testing is needed to properly assess and diagnose the disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The objective clinical evidence is the most probative evidence as to the level of hearing acuity and whether it meets the requirements of 38 C.F.R. § 3.385. The Veteran has not been shown to have the experience, education, or training necessary to render a competent opinion as to such. In sum, the evidence of record is against a finding that the Veteran has had a hearing loss disability during his claim. To the contrary, it reflects that he has normal hearing. As a service connection claim requires, at a minimum, medical evidence of a current disability, the Veteran's claim for service connection for bilateral hearing loss is not warranted in this case. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. REMAND Migraine Disability The Veteran contends that he has a migraine disability which may be related to a nonservice-connected neck disability or to a service-connected disability. In a statement dated in January 2007, the Veteran asserted that he feels that his migraine headaches are due to the post nasal fracture. In a November 2011 statement, the Veteran asserted that the arthritis in his neck and the pain in his shoulder is causing his migraine headaches. The Veteran's STRs are negative for complaints of frequent headaches or migraines and the Board finds, for the reasons noted below, that the Veteran's assertions as to chronic migraines in service are less than credible and need not be considered by a VA examiner. A Health Questionnaire for Dental Treatment is of record. It reflects that the Veteran did not check that he had frequent headaches. The Veteran completed the form in January 2000, and reviewed it in February 2000, April 2001, November 2001, and October 2002; he did not check that he had frequent headaches. A February 2005 report of medical history reflects that the Veteran denied frequent or severe headaches. Notably, he reported seven other complaints, but denied frequent or severe headaches. A May 2005 report of medical history reflects that the Veteran denied frequent or severe headaches. A May 2006 record reflects that the Veteran was seen for follow-up after seeing pain management. It was noted that he had joint pain and approximately 20 disabilities, but did not list migraines as a problem. An October 2006 contract examination report for a September 2006 examination for numerous disabilities reflects that the Veteran reported that he suffered from a nasal fracture. He noted that he has pain which occurs three times per week and each time lasts for 2 hours. He reported that the pain travels to his head. He reported that the pain comes on by itself and is relieved by itself. The Veteran separated from service on November 30, 2006. A December 8, 2006 private record from Dr. W. Hall reflects that the Veteran had a past medical history of chronic back pain, leg pain, arthritis of the knees, ankle pain, and anxiety. It is negative for any history of migraines or neck problems. 2007 VA clinical records reflect reports of headaches. A January 18, 2007 VA clinical record reflects that the Veteran reported that he had "chronic neck pain on the left side for months associated with headache." A March 2007 record reflects that the Veteran reported a headache and neck/cervical pain. An April 2007 VA Eye Optometry Consult record reflects that the Veteran reported that when he has a migraine, he has some radiating pain from his left eye located over the temple. An August 2007 VA clinical record reflects that the Veteran called with a complaint of migraine headaches. A September 2007 VA primary care outpatient note reflects that the Veteran reported that he has had migraine headaches for the past 10-15 years, but, over the last 1-2 months, he had had constant generalized severe headaches different from his previous headaches. An October 18, 2007 VA neurology consult note reflects that the Veteran was recently started on Zomig for headaches and had been taking Goody's powder. It was noted that the Veteran was to have a head CT completed prior to his next visit. It was further noted that if the CT was negative, an MRI of the brain may be considered. In a statement dated in July 2009 (VA Form 9), the Veteran stated that his headaches are nearly constant and daily. He reported that he is being treated at a pain management center and that the pain from his seems to be radiating from the shoulders upwards. The Veteran is service connected for left shoulder impingement syndrome with mild degenerative joint disease and status post nasal fracture. Based on the forgoing, the Board finds that VA should attempt to obtain additional clinical records, SSA records, and also obtain a VA examination with an opinion as to whether it is as likely as not that the Veteran has a migraine disability causally related to service, or a service-connected disability (to include a nasal and/or left shoulder disability). Cervical Spine or neck disability The Veteran's STRs are negative for complaints of a cervical spine injury or chronic cervical spine complaints. A May 2006 record reflects that the Veteran was seen for follow-up after seeing pain management. It was noted that he had joint pain and approximately 20 disabilities, but does not list cervical or neck pain as a problem. An October 2006 contract report for a September 2006 examination reflects that the Veteran reported numerous complaints with regard to the musculoskeletal system , to include the shoulder, the elbow, the knees, the left ankle, the left thumb, the lumbar spine. The report is negative for any findings with regard to the cervical spine. The Veteran separated from service on November 30, 2006. A December 8, 2006 private record from Dr. W. Hall reflects that the Veteran had a past medical history of chronic back pain, leg pain, arthritis of the knees, ankle pain, and anxiety. It is negative for any history of cervical spine problems. A January 18, 2007 VA clinical record which reflects that the Veteran reported that he had "chronic neck pain on the left side for months associated with headache." A March 2007 record reflects that the Veteran reported a headache and neck/cervical pain. The Board notes that this complaint was within one year after separation from service. Under 38 C.F.R. § 3.309, arthritis is subject to presumptive service connection if it manifested to a compensable degree within one year after separation from service. In a statement dated in July 2009 (VA Form 9), the Veteran stated that his neck condition is being treated at a pain control center. Based on the forgoing, the Board finds that VA should attempt to obtain additional clinical records, SSA records, and also obtain a VA examination with opinion as to whether it is as likely as not that the Veteran has a cervical spine (neck) disability causally related to service. The clinician should also opine as to whether the Veteran has cervical spine arthritis based on x-ray evidence, and if so, the level of severity, and whether it is as likely as not to have manifested to a compensable degree within one year of separation from service. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all providers (VA and private) from whom he has received treatment for migraines, and/or his neck (cervical spine) since service and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records, to include VA records of CT scans and MRIs which may have been performed with regard to the Veteran's complaints of migraines. (See October 2007 VA clinical records.) 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 3. After completion of the foregoing, schedule the Veteran for a VA examination to determine the current nature and likely etiology of the claimed cervical spine or neck disability. The claims folder and all pertinent records should be made available to the examiner for review. All indicated testing should be conducted. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a cervical spine or neck disability which is causally related to, or aggravated by, service. The examiner should provide an adequate rationale which considers the entire claims file, to include: a.) the STRs which are negative for complaints of a cervical spine injury or chronic cervical spine complaints, b.) the January 18, 2007 VA clinical record which reflects that the Veteran reported that he had chronic neck pain on the left side for months, and c.) the Veteran's contention that his neck pain is generating from his shoulders up. The clinician should opine if there is x-ray evidence of arthritis of the cervical spine, and if so, the severity of the arthritis, and whether it is as likely as not that it manifested, and to what degree, within a year of separation from service. 4. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the claimed migraine headache disability. The claims folder and all pertinent records should be made available to the examiner for review. All indicated testing should be conducted. Based on the examination and review of the record, the examiner should answer the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current migraine headache disability was incurred in or aggravated by service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any current migraine headache disability was caused by his service-connected disabilities, which include left shoulder impingement syndrome and status-post nasal fracture? (c) Is it at least as likely as not that the Veteran's service-connected disabilities, which include left shoulder impingement syndrome and status-post nasal fracture, aggravated any current migraine headache disability? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of migraine headache disability (i.e., a baseline) before the onset of the aggravation. The examiner should provide an adequate rationale which considers the entire claims file, to include a.) the Veteran's contention that he has a migraine disability due to his post nasal fracture, b.) the Veteran's assertion that his migraine pain radiates upwards from his shoulders, c.) the January 18, 2007 VA clinical record which reflects that the Veteran reported that he had chronic neck pain on the left side for months associated with headache, d.) the April 2007 VA Eye Optometry Consult, e.) the September 2007 VA primary care outpatient note which reflects that the Veteran reported headaches for 1-2 months which differed from previous headaches, and f.) CT and/or MRI records, if any. The examiner should not consider any contention by the Veteran that he has had migraines for 10-15 years because the Board finds that this is less than credible based on the Veteran's denials of frequent or severe headaches in service. (See Health Questionnaires for Dental treatment dated in January 2000, February 2000, April 2001, November 2001, and October 2002 and February and May 2005 Reports of Medical History.) 5. Thereafter, readjudicate the claims. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs