Citation Nr: 1801031 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-02 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tension headaches. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a respiratory disability. 5. Entitlement to service connection for a dental disability for compensation purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for headaches, bilateral hearing loss, tinnitus, a lung condition, and loss of all upper teeth. The RO in Atlanta, Georgia currently has jurisdiction over the Veteran's claims. The Veteran testified before the undersigned Veterans Law Judge at a September 2017 videoconference hearing at the RO. A transcript of the hearing has been associated with his file. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, a respiratory disability, and a dental disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current tension headaches had their onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tension headaches are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board is granting the claim of service connection for tension headaches, the claim is substantiated and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. § 1110; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a July 2010 VA examination report reveals that the Veteran has been diagnosed as having tension headaches. Thus, a current disability has been demonstrated. There is also evidence of headaches in service and evidence of continuous symptoms in the years since service which indicates that the current tension headaches were incurred in service. The Veteran contends that he has experienced headaches ever since service. Specifically, he has reported that he began to experience headaches in service after being kicked in the mouth by another service member in 1969. He lost his upper teeth as a result of the injury and has experienced headaches ever since that time. Although there is no contemporaneous evidence of treatment for the Veteran's claimed injury in service, service treatment records reflect that numerous upper teeth were lost during service and that he had full upper dentures at the time of his March 1970 separation examination. Moreover, the post-service lay and medical evidence indicates that the Veteran has continued to experience headaches in the years since service. The Veteran is competent to report headaches in service and continuous headaches in the years since service. See Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous headaches in the years since service are credible. The physician who conducted the July 2010 VA examination opined that the Veteran's headaches were not likely to be caused by the loss of teeth themselves. Physiologically, the symptoms do not correlate, but it was possible that the headaches could have been caused by another injury from the same incident, and not necessarily by the fact that the Veteran lost his teeth. There were minimal service treatment records in his claims file, no treatment records for any medical conditions in service, and no report of medical history at the time of the Veteran's separation from service. Therefore, it could not be determined whether or not the Veteran reported or was treated for headaches in service or at the time of his separation examination. Thus, no opinion could be given without resorting to speculation. The July 2010 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to the etiology of the Veteran's headaches could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In sum, the evidence reflects that the Veteran experienced headaches in service and that there have been continuous headaches in the years since service. He has also been diagnosed as having current tension headaches. There is no adequate and probative medical opinion contrary to a conclusion that the current tension headaches had their onset in service. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current tension headaches had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed tension headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for tension headaches is granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83.) In the present case, a January 2011 VA ambulatory care outpatient note includes a report of tooth pain and a diagnosis of chronic obstructive pulmonary disease (COPD). The Veteran has also reported that he lost his upper teeth in service. The Board points out that service connection for compensation purposes is only available for dental disabilities that are the result of osteomyelitis or osteoradionecrosis, or due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or due to the loss of teeth due to loss of substance of the upper or lower jaw. 38 C.F.R. § 4.150 (2017). Nevertheless, there is competent evidence of a current respiratory disability and persistent or recurrent symptoms of a possible current dental disability for compensation purposes. The Veteran contends that he lost his upper teeth in service when he was kicked in the mouth by another service member in 1969. Service treatment records confirm that numerous upper teeth were lost during service and that the Veteran had full upper dentures at the time of his March 1970 separation examination. Also, he reported during the January 2011 VA ambulatory care evaluation that he continued to experience tooth pain ever since the in-service mouth injury. As for the claimed respiratory disability, the Veteran contends that this disability is the result of exposure to various chemicals in service, including asbestos in shipyards and aboard the U.S.S. Kitty Hawk, herbicide agents used in Vietnam (including Agent Orange), and aircraft cleaning solvents. He has specifically reported that he temporarily set foot in Vietnam for approximately 4 days in April 1969 in order to perform aircraft maintenance. His service personnel records and information received from U.S. Army and Joint Services Records Research Center (JSRRC) (formerly, the U.S. Armed Services Center for Unit Records Research (CURR)) confirm that his military occupational specialty was an aircraft mechanic and that he served aboard the U.S.S. Kitty Hawk while it was performing operations off the coast of Vietnam in 1969. The Board also notes that VA's Adjudication Procedure Manual (M21-1) indicates that for many asbestos-related diseases, the latency period varies from 10 to 45 or more years between first exposure and development of the disease. An asbestos-related disease also can develop from brief exposure to asbestos. M21-1, Part IV, Subpart ii, 2.c.2.f (updated Nov. 2, 2016). Moreover, a family nurse practitioner at Avere Healthcare Clinics (C.H., FNP) reported in an October 2017 letter that she reviewed the Veteran's medical records and his exposure to various chemicals in service. She opined that it was likely ("more likely than not") that the Veteran experienced side effects from this exposure while on active duty, including, but not limited to, carcinoma, loss of appetite, dizziness, fatigue, and weakness. She concluded that it was "safe to say that inhalations of any of these chemicals have contributed to the [Veteran's] chronic health issues." She did not provide any more specific explanation or rationale concerning what particular disabilities were the result of the Veteran's exposure to chemicals in service. In sum, there is competent evidence of persistent or recurrent symptoms of a respiratory disability and a possible dental disability for compensation purposes, evidence of a mouth injury and dental problems in service, evidence of potential exposure to various chemicals and toxins in service (including asbestos and herbicide agents), competent evidence of a continuity of dental symptomatology in the years since service, and a medical opinion that suggests that a claimed disability may be related to service. Thus, the Board finds that VA's duty to obtain examinations as to the nature and etiology of any current respiratory disability and dental disability is triggered. The examinations are needed to determine whether the Veteran has any current dental disability for compensation purposes and to obtain medical opinions as to the etiology of any such dental disability and of the current respiratory disability. As for the claims of service connection for bilateral hearing loss and tinnitus, the Veteran contends that these disabilities began after service, but that they are either related to noise exposure in service or his exposure to a blast wave when a military aircraft crashed and exploded at Marine Corps Air Station Miramar (Miramar) in 1969. Newspaper articles submitted by the Veteran and his service personnel records confirm that a military aircraft crashed and exploded at Miramar in December 1969 while the Veteran was stationed at that location. He contends that he was thrown approximately 100 feet due to the blast and that his hearing loss and tinnitus are related to that injury. A VA audiological examination was conducted in May 2010 and the Veteran was diagnosed as having bilateral sensorineural hearing loss as defined by VA (see 38 C.F.R. § 3.385 (2017) and recurrent tinnitus. The audiologist who conducted the examination provided an opinion as to whether the Veteran's hearing loss and tinnitus were the result of noise exposure in service. The examiner did not, however, have an opportunity to provide an opinion as to whether the Veteran's hearing loss and tinnitus are the result of his exposure to the blast wave from the aircraft crash at Miramar. Hence, a remand is necessary to obtain a new medical opinion as to the etiology of the Veteran's hearing loss and tinnitus. Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159 (c)(4). The Veteran reported during the May 2010 VA audiological examination that he was in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if potentially relevant. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("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"). The records related to the Veteran's claim for SSA benefits have not yet been associated with the file and may be relevant to the claims on appeal. Also, the October 2017 letter from the family nurse practitioner at Avere Healthcare Clinics reflects that the Veteran received treatment at that location. The AOJ has not attempted to obtain any relevant records from Avere Healthcare Clinics. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Updated VA treatment records should also be secured upon remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hearing loss, tinnitus, a dental disability, and a respiratory disability, to include the dates of any such treatment. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for hearing loss, tinnitus, a dental disability, and a respiratory disability from Avere Healthcare Clinics and from any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is obtained. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Obtain and associate with the file all outstanding VA records of the Veteran's treatment, to specifically include: (a) all records from the VA North Texas Health Care system dated since January 2011; (b) all records contained in the Kansas City Vista electronic records system and dated since January 2001; (c) all records contained in the Gainesville Vista electronic records system and dated since May 2001; and (d) all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 3. Contact the SSA and obtain a copy of that agency's decision(s) concerning the Veteran's claim(s) for disability and/or supplemental security income benefits, including any medical records relied upon to make the decision(s). All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 4. After all efforts have been exhausted to obtain and associate with the file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination to assess the nature and etiology of any current respiratory disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should identify any respiratory disabilities that have been diagnosed since approximately November 2009 (even if the disability is currently in remission or has completely resolved) and for each such disability answer the following question: Is it at least as likely as not (50 percent probability or more) that the current respiratory disability had its onset during service, is related to exposure to asbestos in service, is related to exposure to herbicide agents (including Agent Orange) in service, is related to exposure to aircraft cleaning solvents in service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner should specifically acknowledge and comment on any respiratory disabilities diagnosed since approximately November 2009 (including, but not limited to, COPD) and the Veteran's reports of exposure to asbestos, herbicide agents (including Agent Orange), and aircraft cleaning solvents in service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for respiratory problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. Also, the fact that a specific respiratory disability is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. 5. After all efforts have been exhausted to obtain and associate with the file any additional treatment records and any records from the SSA, schedule the Veteran for a VA dental examination to assess the nature and etiology of any current dental disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should identify any dental disabilities that have been diagnosed since approximately November 2009 (even if the disability is currently in remission or has completely resolved) and for each such disability answer the following question: Is it at least as likely as not (50 percent probability or more) that the current dental disability had its onset during service, is related to the Veteran's mouth injury in service when he was kicked in the mouth and lost his upper teeth, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner should specifically acknowledge and comment on any dental disabilities diagnosed since approximately November 2009, all instances of treatment for dental problems in the Veteran's service treatment records, and his report of being kicked in the mouth by a fellow service member in service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report a mouth injury in service, his symptoms, and history and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for a mouth injury or for specific dental problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 6. After all efforts have been exhausted to obtain and associate with the file any additional treatment records and any records from the SSA, request an opinion from an appropriate medical professional. Ask the medical professional to review all relevant electronic records contained in the VBMS and Virtual VA (Legacy Content Manager) systems (including a copy of this remand along with any records obtained pursuant to this remand) and provide an opinion as to the etiology of the Veteran's hearing loss and tinnitus. For any hearing loss and tinnitus experienced since approximately November 2009, the medical professional should answer the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current hearing loss had its onset during service, had its onset in the year immediately following service, is related to the Veteran's exposure to loud noises in service, is related to his exposure to a blast wave from an aircraft explosion in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the current tinnitus had its onset during service, had its onset in the year immediately following service, is related to the Veteran's exposure to loud noises in service, is related to his exposure to a blast wave from an aircraft explosion in service, or is otherwise the result of a disease or injury in service? In answering the above questions, the medical professional should specifically acknowledge and comment on the Veteran's exposure to loud noises in service and his exposure to the blast wave from an exploding aircraft in service. The medical professional must provide reasons for each opinion given. The medical professional is advised that the Veteran is competent to report his exposure to noise and a blast wave in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for hearing loss or tinnitus in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 7. If any benefit sought on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs