Citation Nr: 1524859 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 13-23 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for migraine headaches, to include as secondary to service-connected tinnitus. 3. Entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood, to include as secondary to service-connected tinnitus. 4. Entitlement to service connection for a heart disorder, to include atherosclerotic heart disease. REPRESENTATION Appellant represented by: Ralph Bratch. Attorney ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to January 1954 and from December 1954 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in June 2009 and October 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Received by the Board in January 2015 was the Veteran's request for an extension of time in which to submit additional evidence and argument. That request was granted by the Board in February 2015. Additional evidence and argument was received from the Veteran by the Board in February 2015, which was accompanied by a written waiver for its initial consideration by the RO. In a July 2011 statement from the Veteran's attorney, a claim for service connection for direct and/or secondary service connection for erectile dysfunction was raised, but the record does not indicate that any action was subsequently undertaken relating thereto. Such matter, though not within the Board's appellate jurisdiction, is referred to the RO for its initial development and adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of the Veteran's entitlement to service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran through his attorney withdrew from appellate consideration the issue of his entitlement to an increased rating for tinnitus, evaluated as 10 percent disabling, by a signed, written statement received by the Board in February 2015. 2. It is at least as likely as not that the Veteran's migraine headaches and adjustment disorder with anxiety and depressive features are aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal from appellate consideration of the issue of the Veteran's entitlement to an increased rating for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. Migraine headaches and an adjustment disorder with mixed anxiety and depressed mood were aggravated by service-connected tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Board in February 2015 received from the Veteran's attorney of record a written, signed statement invoking the Veteran's right to withdraw from appellate consideration the issue of his entitlement to an increased rating for his service-connected tinnitus. The Board notes that the RO had previously assigned the highest available schedular evaluation for tinnitus, and while it is noted that the attorney mistakenly indicated that the issue for withdrawal was for service connection for tinnitus, it may only be reasonably concluded that the attorney was in fact referencing the pending, developed claim for an increased rating for tinnitus. Moreover, the attorney in the above-referenced statement in fact offers argument in support of other pending claims for service connection on the basis that such bear a defined relationship to the Veteran's service-connected tinnitus. In light of the foregoing, the Board finds that the Veteran has effectively withdrawn from appellate review his pending claim for increase for tinnitus and in light of that withdrawal, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review that matter and it must be dismissed. Service Connection: Migraine Headaches & Adjustment Disorder As the dispositions herein reached are favorable to the Veteran-appellant, the need to discuss the VA's efforts to comply with VA's duties to notify and assist the Veteran, as codified in the United States Code and its implementing regulations, or as set forth in the body of law interpretive thereof, is obviated. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service, or proximately due to or the result of existing service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). A baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Id. Here, service connection for tinnitus was established by RO action in June 2009 and it is the Veteran's principal contention that his claimed migraine headaches and adjustment disorder are aggravated by his service-connected tinnitus. As the record is found to at least be in equipoise as to the question of aggravation of a nonservice-connected disorder by service-connected disability, the need to discuss the question of service incurrence, with an attendant review of service treatment records, is unnecessary. Medical evidence developed in connection with the instant claims, inclusive of VA medical examinations in 2011, denotes pertinent postservice diagnoses of migraine headaches and an adjustment disorder with mixed anxiety and depressed mood. As well, a VA examiner in July 2011 determined that it was more likely than not that the Veteran's headaches were exacerbated by his tinnitus, citing as a basis therefor the interplay between sensory stimuli and headaches. Yet, when completing a disability benefits questionnaire (DBQ) in October 2011, the same VA examiner found that it was not at least as likely as not that the headaches were aggravated beyond normal progression on the basis that there was no evidence that the headaches had progressed beyond the normal progress of the disease due to tinnitus. The VA examiner noted that from a data review the rate of increase of symptoms did not correlate to an objective increase in tinnitus symptoms and that the Veteran's statements to the contrary were not confirmed by the available objective evidence. Similarly, another VA examiner in July 2011concluded, following an examination of the Veteran's mental status, that it was at least as likely as not that the Veteran's adjustment disorder had been aggravated by his tinnitus, noting that the tinnitus was an ongoing stressor which was most likely aggravating both his depression and anxiety. The extent of the aggravation could not be quantified by the VA examiner without resorting to mere speculation based on the subjectivity of the increased symptoms and the Veteran's awareness of such. That same VA examiner thereafter completed a DBQ in August 2011 in which she reiterated that insufficient medical evidence precluded an objective determination of a baseline level of severity. She did indicate that new evidence had been submitted from the Mayo Clinic, albeit without specific notations of the salient evidence or its significance or addressing any question as to causality or aggravation in the body of the DBQ, she nonetheless indicated in response to a question posed in (7)(a)(i) that it was not at least as likely as not that the Veteran's headaches were aggravated beyond normal progression. The indicated rationale was that tinnitus had been present since 1952 and complaints of headaches were not voiced until 2008, and if tinnitus were a significant aggravating factor it was likely that the Veteran would have complained of anxiety years before. The Board discounts the changed, more recent opinions obtained from the VA examiners as to the absence of aggravation of migraine headaches and an adjustment disorder by service-connected tinnitus. The Board's review of the Mayo Clinic evidence includes a diagnostic impression recorded in February 2009 of anxiety secondary to general medical problems and among those problems was the Veteran's tinnitus. Such records do not form a basis for the changed opinion of the VA examiner and the rationale cited in no way supports that change, inasmuch as the crux of the matter is whether the nonservice-connected entity of headaches was made worse by tinnitus, which was not directly addressed in the VA examiner's DBQ. As for the headaches, the same is true in that the changed opinion is based on a rationale that migraines began decades after the Veteran's tinnitus and that migraines were of a vascular etiology, with there being no interaction with audio-vestibular pathways. The fact that one preceded the other by decades does not speak to the question of the inter-relationship of the two entities, and while vascular and audio or vestibular pathways may be separate and distinct, there was no discussion of migraines and tinnitus as chronic neurologic pathologies. In all, the evidence favoring service connection for the claimed disorders is at least in relative equipoise, such that the benefit of the doubt must be accorded the Veteran and service connection conceded for migraine headaches and an adjustment disorder with mixed anxiety and depressed mood. To that extent, the appeal is granted. ORDER The claim for an increased rating for tinnitus, evaluated as 10 percent disabling, is dismissed. Service connection for migraine headaches, secondary to service-connected tinnitus, is granted. Service connection for an adjustment disorder with mixed anxiety and depressed mood, secondary to service-connected tinnitus, is granted. REMAND By this appeal the Veteran also seeks service connection for a heart disorder, to include atherosclerotic heart disease. In support of his entitlement thereto, he points to an inservice electrocardiogram of July 1961 which was found by an attending medical professional to be abnormal and which led to the Veteran's suspension from his flying duties. Also noted is postservice treatment, including hospitalization, for tachycardia, arrhythmias, premature atrial and ventricular contractions, mitral valve prolapse, and coronary atherosclerosis. Despite the foregoing, the Veteran has not been afforded a VA medical examination to date regarding his claimed heart disorder and argues that the failure to provide such an evaluation is a violation of the VA's duty to assist. The Board concurs, finding that remand to obtain a VA medical examination and opinion as to the nexus of any identified cardiac disorder to military service is necessary. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all pertinent VA treatment records not already on file for inclusion in the Veteran's electronic claims folder. 2. Thereafter, afford the Veteran a VA medical examination with respect to his claimed heart disorder. The claims folder should be made available to and reviewed by the VA examiner for use in the study of this case. Such examination should entail the taking of a complete medical history, as well as the conduct of a clinical evaluation and all diagnostic studies deemed warranted by the examiner. All pertinent diagnoses should be fully set forth. The VA examiner should then offer a medical opinion, with full supporting rationale as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that any heart disorder, including but not limited to atherosclerotic heart disease, had its onset during the Veteran's periods of active duty or is otherwise attributable to his military service or any event therein? Consideration should be afforded service treatment records denoting an abnormal electrocardiogram for which the Veteran was suspended from flying in July 1961 and the medical data developed postservice as to the existence of various heart disorders. (b) Is it at least as likely as not (50 percent or greater probability) that any cardiovascular or heart disorder originated during the one-year period immediately following any separation from active service, and if so, how and to what degree was any such disorder manifested? 3. Lastly, readjudicate the remaining issue on appeal and if the benefit sought continues to be denied, furnish the Veteran a supplemental statement of the case and afford him a reasonable period for a response before returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs