Citation Nr: 1752327 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-04 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1967 to April 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from January and March 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In July 2016, this appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the appeal was remanded to obtain additional treatment records, afford the Veteran a VA examination for sleep apnea, and to obtain an addendum opinion regarding the Veteran's hearing loss and sinusitis. As to the issue of sleep apnea, the Board notes that the Veteran was granted service connection for sleep apnea during the appeal in a September 2016 rating decision. As this grant represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). As to the remaining July 2016 remand directives, additional treatment records have been obtained, and the Veteran underwent a new VA examination for his hearing loss in September 2016. Thus, the Board finds there has been substantial compliance with the July 2016 remand as to these directives. As to the issue of sinusitis, as explained in the remand portion of this decision, the Board does not find the addendum opinion adequate, and further remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2014, the Veteran appeared at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of sinusitis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's headaches are not causally or etiologically related to his service. 2. The Veteran's bilateral hearing loss is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in letters sent to the Veteran in April and June 2011. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim as well. VA has obtained all identified and available service and post-service treatment records, and the VA examinations afforded the Veteran in February 2012 for his headaches and September 2016 for his hearing loss are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). For each condition, the examiner considered the Veteran's symptoms and history and applied accepted medical standards and principles in rendering an opinion. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. See 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 claims on appeal. Headaches The Veteran contends that his current condition of cluster headaches is related to his service. The medical evidence of record includes a VA examination and private treatment reports, which the Board will discuss chronologically. An April 1998 report from Family Practice Associates reflects the Veteran's reports that he had headaches for a lot of years before he got on medication. The examiner indicated that the Veteran's cluster headaches had been going up lately and that if the Veteran did not show improvement in three days, he would be referred to a neurologist. In February 2012, the Veteran underwent a VA examination for his headaches. The VA examiner provided a diagnosis of cluster headaches. As to the Veteran's medical history of headaches, the report indicates that the Veteran was diagnosed with cluster headaches in the early 1980s but also had mild headaches in the 1970s, which intensified in the 1980s. The VA examiner noted that the Veteran's headaches are severe and pulsating on the right side and that he takes medication for them. As to a nexus, the VA examiner provided a negative opinion and reasoned that the Veteran's cluster headaches came after his service time and are unrelated to his service. There are various other VA treatment reports of record regarding the severity of the Veteran's headaches. However, as the record clearly establishes a diagnosis and these treatment reports do not speak to the issues of an in-service incurrence or a nexus, the Board will not discuss these records. See Gonzales v. West, 218 F.3d at 1380-81. As to lay statements regarding his claim for headaches, at the June 2014 hearing, the Veteran indicated that the headaches began when he was in his 30s, that they just hit him at once, and that he has had them ever since. He indicated that he cannot recall having migraines or cluster headaches while he was in service. He also indicated that in service, he was around rockets and mortars at night, which were loud. Having reviewed the evidence of record, medical and lay, the Board finds that service connection for headaches is not warranted. The record is clear as to a diagnosis for cluster headaches, and the Board finds the Veteran's reports of exposure to rockets and mortars to be credible and probative of an in-service event. Thus, the first two elements of service connection are met. At issue is a nexus. As to a nexus, the Board notes the negative opinion provided by the February 2012 VA examiner. The Board finds the VA examiner's reasoning that the Veteran's headaches are not related to service because they occurred after service to be probative as they are also in line with the Veteran's reports. The Veteran's service treatment reports are silent as to any treatment for or complaints of headaches, and he has indicated that he does not recall having headaches in service. Additionally, his medical history indicates that he did not begin to experience cluster headaches until the 1970s and was not diagnosed with cluster headaches until the 1980s, after service. Given the probative medical evidence and Veteran's reports, the Board finds that the record does not support a nexus between the Veteran's current cluster headaches and his active service. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for entitlement to service connection for headaches. As such, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (West 2014). Hearing Loss The record reflects that the Veteran has a diagnosis of bilateral hearing loss, which he asserts is related to service. The September 2016 VA examiner provided a diagnosis for bilateral hearing loss, and the audiometric findings from this examination establish bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As the Veteran's military occupation specialty as a helicopter mechanic has a high probability of noise exposure, the Board concedes in-service incurrence of noise trauma. As such, the first two elements of service connection are met. As to a nexus, the Board acknowledges the negative opinion provided by the September 2016 VA examiner. The VA examiner indicated that the Veteran's hearing acuity at both his entrance and separation examinations were within normal limits. He acknowledged that the Veteran experienced noise exposure in service and that the Veteran's hearing did decrease after leaving service but indicated that based on hearing in service, it is not at least as likely as not that the Veteran's hearing loss is related to his active service. However, as the record establishes that the Veteran was exposed to noise trauma in service, had an acuity shift between entering and leaving service, and had declining hearing over time following discharge from service, the Board finds that the evidence regarding a link between the Veteran's hearing loss and his service is evenly balanced. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for hearing loss is warranted. ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for bilateral hearing loss is granted. REMAND Although further remand is regrettable, the Board finds that it is necessary regarding the Veteran's claim for service connection for sinusitis. The August 2016 VA examination report for the Veteran's sinusitis reflects that he reported having sinus issues all his life. The VA examiner also relied on this assertion in providing a rationale for the negative nexus opinion given. At the outset, the Board notes that a sinus condition was not noted on the Veteran's entrance examination. To the contrary, his September 1967 entrance examination indicates "normal" for sinuses. In this regard, the Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service except as to defects noted at the time of the examination, acceptance, and enrollment or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2012). Thus, given that sinus issues were not noted at entry, the Veteran is presumed sound at entry in this case absent rebuttal of that presumption. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the VA must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the VA must rebut a statutory presumption of aggravation by showing by clear and unmistakable evidence either that: (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. Wagner v. Principi. Because the record suggests that the Veteran had sinus issues prior to service, an opinion as to whether or not he had a pre-existing condition is required. Accordingly, the case is REMANDED for the following action: 1. Arrange for an examiner to provide an opinion that fully addresses the questions below. The claims file should be made available to the examiner for review of the case, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. An examination is not required unless the examiner deems it necessary in order to render the requested opinions. The examiner should provide the following opinions: a) Whether there is clear and unmistakable evidence that a sinus condition existed prior to service. (i) If there is clear and unmistakable evidence that a sinus condition pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing sinus condition was not aggravated, (i.e. permanently worsened beyond its natural progression), during service. The examiner should note that "clear and unmistakable evidence" means that the evidence cannot be misinterpreted and misunderstood, i.e. is undebatable. b) If the examiner determines that a sinus condition pre-existed service and was aggravated during service, please provide an opinion as to whether it is at least as likely as not that the Veteran's current sinus condition is related to his service. c) If the examiner determines that a sinus condition did not pre-exist service, please provide an opinion as to whether it is at least as likely as not that the Veteran's current sinus condition is related to his service. In addition to the Veteran's medical history, all conclusions and rationales should take into consideration the Veteran's assertions regarding his symptoms prior to, during, and after service. A complete rationale should be given for all opinions and conclusions expressed. 2. Then, readjudicate the claim on appeal. If the benefits sought are not granted in full, provide the Veteran and his representative with a supplemental state of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. 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 2014). ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs