Citation Nr: 1752037 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-18 435A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to a compensable rating for bilateral hearing loss prior to October 29, 2015, and in excess of 40 percent thereafter. ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Army from July 1980 to May 1987. This matter came to the Board of Veterans' Appeals (Board) on appeal from November 2008 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. In the November 2008 rating decision, the RO denied a compensable rating for bilateral hearing loss. In November 2009, the appellant submitted a notice of disagreement with the RO's decision. Following the issuance of a Statement of the Case in April 2010, the appellant perfected an appeal via his submission of a timely VA Form 9 in May 2010. In November 2012, the Board remanded the matter for additional evidentiary development. While the matter was in remand status, the appellant continued to file additional claims. In a June 2013 rating decision, the RO denied service connection for headaches. In July 2013, the appellant submitted a notice of disagreement with the RO's decision. Following the issuance of a Statement of the Case in August 2015, the appellant perfected an appeal via his submission of a timely VA Form 9 in August 2015. Before the appeals were certified to the Board, in a June 2017 rating decision, the RO increased the rating for the appellant's service-connected bilateral hearing loss to 40 percent, effective October 29, 2015. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned, nor has the Veteran withdrawn his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, given the procedural history of this case, complete adjudication of the claim now requires analysis of two discrete time periods, as reflected on the cover page of this decision. The issue of entitlement to an increased rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The appellant suffers from posttraumatic persistent daily headaches that are casually linked to the April 1986 La Belle bombing in Berlin. CONCLUSION OF LAW The criteria for service connection for chronic headaches have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The appellant has not raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2017) (applying Scott to a duty to assist argument). Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. §5107(b); see also 38 C.F.R. § 3.102. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis The appellant seeks service connection for chronic headaches. He contends that while he was on active duty and stationed in Germany, he was at the La Belle discotheque in West Berlin the night it was bombed in April 1986 and that this incident is the cause of his current chronic headaches. In general, to establish service connection, a Veteran must show (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). With respect to the first element needed to establish service connection, the Board finds that the appellant has a current disability of chronic headaches. In a June 2013 letter, the appellant's treating physician stated that he had been treating the appellant for chronic cephalgia (cluster headaches) since his first visit to the office in 2000. As discussed in further detail below, the appellant underwent a VA examination in February of 2013 that diagnosed him as suffering from "persistent, daily, posttraumatic headaches." Thus, the first element, a present disability, is met for this claim. With respect to the second element needed to establish service connection, in-service incurrence or aggravation of a disease or injury, the appellant has stated that he was injured during the April 1986 bombing of the La Belle discotheque in West Berlin while he was stationed there on active duty with the Army. The appellant's service treatment records and military personnel records confirm this statement. Indeed, the appellant's service treatment records indicate that he underwent emergency medical care and treatment on the night of the bombing, April 5, 1986, for injuries to his head and neck sustained in the blast. They also indicate that through the months of April, May, and June 1986, the appellant sought treatment for constant headaches that he said he had been experiencing since the explosion. A June 1986 report classified the headaches as posttraumatic headaches. In December 1986, the appellant marked on a report of his medical history that he suffered from frequent and severe headaches. The appellant's personnel records also record that he had been complaining of chronic headaches in the months leading up to his medical discharge in 1987. In addition to the service treatment records documenting chronic in-service headaches, the appellant is competent to relay symptoms he is experiencing. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the Board finds these statements to be credible because they were sought in the course of medical treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board finds that the appellant incurred chronic headaches after the La Belle discotheque bombing in 1986. Thus, the second element of service connection has been met for this claim. With respect to the third element, a causal relationship between the present disability and the in-service incurrence of an injury or disease, the record contains conflicting evidence. Two medical opinions have been presented in this case. The first opinion comes from an in-person VA examination conducted in February 2013. The second was obtained by the RO in May 2013 and was given without the appellant being present for an examination. The appellant has also indicated that it is his lay opinion that his current chronic headaches are associated with the April 1986 La Belle bombing. In Nieves-Rodriguez v. Peake, the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. 295, 302. The first factor to be considered in determining the probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In that regard, the appellant was examined by two physicians at his February 2013 examination. In rendering their opinion, the examiners considered the appellant's statements concerning both his medical history, including the fact that the appellant reports experiencing headaches ever since the April 1986 La Belle discotheque bombing, his symptoms at the time, and his current regimen of medications and treatments. The examiners took note of the appellant's injuries immediately following the explosion, noting injuries to the outer and inner ear, and the fact that he had not suffered any further head trauma since the incident. The examiners concluded, based on all this evidence, including the appellant's statements, that the appellant was suffering from "posttraumatic persistent daily headaches" which he incurred as a result of the April 1986 La Belle discotheque bombing. In May 2013 a VA examiner provided a second opinion. The appellant was not present for an examination so the opinion was based on of a review of the appellant's claims file. The examiner noted the diagnosis of posttraumatic headaches while in service, however, the examiner attributed these to an upper respiratory infection which is not indicated in the service treatment records. The examiner also failed to take into consideration the appellant's statement that he was suffering from frequent and severe headaches on a report of medical history in December 1986 and the findings of the medical review board that the appellant had headaches since the April 1986 La Belle bombing. The examiner also stated that the appellant's record did not show long term headaches as a result of the bombing. The examiner, however, did not consider the appellant's lay statements of chronic headaches or the treatment the appellant received from his German doctor's since at least 2000 for headaches, nor did the examiner discuss the February 2013 opinion which found that the appellant was suffering from posttraumatic headaches. The examiner's opinion was that the appellant's current headaches were not as least as likely as not related to his in-service event. After considering these opinions, the Board finds that the evidence is weighted in favor of the appellant. In this case, the two opinions described were provided by qualified professionals who were competent to diagnose the appellant's current disability and render an opinion on its cause. They both considered the appellant's history of in-service headaches following the La Belle bombing. However, only the February 2013 examination considered the appellant's lay statements that he had been suffering from headaches ever since the bombing. The appellant's statements regarding the onset of his headache condition has been consistent since his first treatments for headaches in 1986. While the Board notes that the appellant's post-service treatment records do not contain evidence of headaches between his discharge from service and 2000, the appellant stated in his September 2015 VA 9 that he was self-treating the headaches and only sought medical care when his home treatments became ineffective. The Board finds that the appellant's statements regarding the onset and continuing nature of his headaches since the April 1986 La Belle discotheque bombing credible because of its consistency with the other evidence of record. Moreover, the May 2013 opinion relies on a misreading of the appellant's service treatment records. The opinion states the appellant's headaches were related to an upper respiratory infection that was specifically ruled out in the treating physician's handwritten notes from June 1986. It also fails to reconcile its findings with the appellant's most recent diagnosis of posttraumatic headaches from the February 2013 opinion, which is consistent with the appellant's in-service diagnosis of posttraumatic headaches from June 1986. The Board finds that these defects in consideration of both the relevant facts and the current diagnosis render the May 2013 opinion of no probative value. Thus while two medical opinions have been presented in this case, the Board only finds one to be of any probative value. With no probative evidence to weigh against it, the Board finds that the appellant's current chronic headache condition of "persistent posttraumatic daily headaches" is causally related to the April 1986 La Belle discotheque bombing and his in-service development of posttraumatic headaches. Therefore, an award for service connection for chronic headaches is warranted. ORDER Service connection for chronic headaches is granted. REMAND The appellant was first granted service connection for hearing loss, with a non-compensable rating in June 1997. That determination was continued in rating decisions from August 2000, March 2003, November 2008, and December 2008. When the case was last before the Board in November 2012, the issue of increased rating for hearing loss was remanded for new testing to determine the appellant's current level of disability. Audiometric examinations were conducted in Germany on October 29, 2015 and December 16, 2015 to determine the appellant's current level of hearing loss. Both examinations were administered in Germany and have been translated to English by a VA audiologist in a June 2017 opinion. On the audiological evaluation on October 29, 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 80 No threshold recorded 80 LEFT 80 70 80 No Threshold recorded 90 No speech recognition testing was completed. On the audiological evaluation on December 16, 2015 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 85 90 No threshold recorded 90 LEFT 85 85 90 No threshold recorded 90 No speech recognition testing was completed. The Board noted in its 2012 remand that a speech audiogram with English words and numbers is not available in Germany. The RO stated in the June 2017 rating decision that speech discrimination score testing was not appropriate due to a language barrier. It is clear from the VA translation of the appellant's medical records and from the graphical data on which it is based that no results were recorded at the 3000 HZ level for the appellant. Thus, no appropriate interpretable audiogram exists that addresses the severity of the appellant's hearing loss for VA purposes. 38 C.F.R. §§ 4.85, 4.86 (2017). The most recent audiogram that reports a frequency at 3000 Hertz is from July 2008 and is now over 9 years old. Another audiogram should be obtained to determine the full extent of the appellant's disability. Accordingly, the case is REMANDED for the following action: 1. Arrange for the appellant to undergo an audiological evaluation at an appropriate facility. If the Maryland CNC speech recognition test is unavailable, this should be indicated in the evaluation. The examiner should specifically indicate the pure tone threshold averages at 1000, 2000, 3000, and 4000 Hertz. All of these values must be addressed. If the audiometric data is provided in a chart or graph form (rather than written out) the audiogram should then be submitted to a VA audiologist who should translate the chart or graph into specific numbers for each of the frequencies at 1000, 2000, 3000, and 4000 Hertz. 2. After completion of the above development, the appellant's claim should be re-adjudicated. If the determination remains less than fully favorable to the appellant, he should be provided with a supplemental statement of the case and given an opportunity to respond. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs