Citation Nr: 1610913 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 15-03 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to an effective date earlier than January 15, 2015, for service connection for bilateral hearing loss disability. 3. Entitlement to an effective date earlier than January 15, 2015, for service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from March 1945 to October 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2013 and November 2015 rating decisions by the Boston, Massachusetts Department of Veterans Affairs Regional Office (RO). In a January 2015 substantive appeal on the issue of entitlement to service connection for a headache disability, the Veteran requested a hearing before a member of the Board which was scheduled for December 2015. However, the Veteran did not report for the scheduled hearing, without providing good cause, and did not timely request that the hearing be rescheduled. Therefore, the Board considers that request for a hearing on that issue to be withdrawn and another hearing cannot be rescheduled on that issue. 38 C.F.R. § 20.702(d) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to effective dates earlier than January 15, 2015 for the grant of service connection for bilateral hearing loss and tinnitus are REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current headache disability that is related to his military service, including any in-service chemical exposure. CONCLUSION OF LAW A headache disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran has been provided adequate notice in response to the claim. The record shows that the Veteran was mailed a letter in February 2012 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The February 2012 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of the claim. The Board also finds the Veteran has been provided adequate assistance in response to the claim. The Veteran's service medical records are of record. Post-service VA, other government agency, and private treatment notes have been obtained. While a VA medical opinion was not provided in relation to the Veteran's claim decided herein, there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the VA's obligation under 38 U.S.C. § 5103A(d) to provide a Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App.79 (2006). Here, the only evidence that the Veteran's headache disability is related to active service are his own conclusory statements. There is no medical evidence to support any alleged relationship. Therefore, the Veteran's statements are insufficient to trigger VA's duty to provide an examination with an opinion. The Veteran has been provided appropriate VA examination. Neither the Veteran nor representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is unaware of any outstanding evidence. Neither the Veteran nor representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he is entitled to service connection for a headache disability and has argued that disability is related to a tumor in the head that he believes was caused by his exposure to various chemicals while on active service. A review of the service personnel records shows that while on active service, the Veteran's military occupational specialties were basic infantry, for four months; light truck driver, for six months; and stock record clerk, for nine months. While he served as a stock record clerk, he was assigned the 141st Chemical Warfare General Service Company and was responsible for keeping supply records of chemicals in the military depot. Based on those duties, the Board concedes that the Veteran had some degree of chemical exposure during active service. A review of the service medical records is silent for complaints of, or any diagnosis of, headaches while the Veteran was on active service. Further, the Veteran has not asserted that he experienced symptoms of headaches while on active service. Of record are various statements that the Veteran has submitted in support of the claim. The Veteran initially alleged that the headaches were secondary to Meniere's disease, for which entitlement to service connection was denied in a February 2013 Board decision. Subsequently, in a July 2013 statement, the Veteran reported that he had been diagnosed with a tumor in his head, which was causing his headaches, and that he believed that the tumor was caused by chemical exposure during active service. A review of the post-service medical evidence of record shows that while incarcerated, the Veteran was treated for complaints of headaches on several occasions in early 2006 that appeared to be related to elevated blood pressure. The Veteran was seen on several consecutive days for repeat blood pressure checks and reported headaches, which eventually decreased in severity, at those times. VA outpatient treatment records show that in June 2008, the Veteran complained of intermittent self-resolving headaches. He underwent a magnetic resonance imaging scan (MRI) which revealed a cerebellopontine (CP) angle tumor. Those records are silent for any indication that headaches, or the tumor, were in any way related to active service, to include any chemical exposure during service. Also of record are private treatment records that show the Veteran received treatment in August 2011 and September 2011 for a migraine headache. Those records provide no indication that any headache disability was caused by or related to active service, to include chemical exposure during service, but rather suggest that the headaches were stress related. The Veteran is competent to report headaches and competent to report whether or not the headaches began in service. However, he has not reported that the headaches began in service. Rather, he has alleged that the headaches are related to the diagnosed tumor which he believes was caused by chemical exposure during active service. Unfortunately the issue of whether the current headache disability is related to a tumor or whether the tumor is related to chemical exposure falls outside the realm of common knowledge of a lay person. Therefore, the Veteran is not competent to provide an opinion on that issue. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that the evidence does not show that the Veteran has a headache disability that first manifested during active service. Additionally, the evidence does not show that the current headache disability is otherwise related to active service, to include any chemical exposure during service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a headache disability and entitlement to service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a headache disability is denied. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. In a March 2016 substantive appeal on the effective date issues, the Veteran indicated that he wanted to appear before a member of the Board for a hearing by live videoconference. The Veteran has not been scheduled for the requested hearing. Because videoconference hearings before the Board are scheduled by the RO, remand is required. 38 C.F.R. § 20.704 (2015). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. Schedule the Veteran for a videoconference Board hearing, on the issues of entitlement to effective dates earlier than January 15, 2015, for service connection for bilateral hearing loss and tinnitus. Notify the Veteran and representative of the date, time, and location of the hearing. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs