Citation Nr: 1801733	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  15-32 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss on a substitution basis. 

2.  Entitlement to service connection for tinnitus on a substitution basis.

3.  Entitlement to service connection for a cervical spine/upper back disability on a substitution basis.

4.  Entitlement to service connection for headaches, to include as secondary to a cervical spine/upper back disability, on a substitution basis.


REPRESENTATION

Appellant represented by:	The American Legion
ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force (USAF) from June 1968 to June 1989.  He died in August 2017.  The appellant is his surviving spouse.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  By that rating action, the RO denied the service connection claims on appeal.  The Veteran appealed the RO's determination to the Board.  As noted above, the Veteran died in August 2017.  A November 2017 letter advised the appellant that she has been substituted as the claimant.  See 38 U.S.C.§ 5121 (2012).  This law provides for a more liberal basis for the award of accrued benefits than is provided in 38 U.S.C.A. § 5121, but is still limited to the same benefit, i.e., accrued benefits due and unpaid at the time of the Veteran's death.  See 38 U.S.C.§§ 5121A, 5121 (2012).  However, it is no longer referred to as a claim for "accrued benefits," because the appellant has been substituted for the Veteran in the claim, and she essentially replaces him as the claimant.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

Regarding the Veteran's claim for service connection for headaches, in a November 2011 report, Dr. B. W. maintained that the Veteran had secondary issues that he felt were secondary to his overall cervical/spinal deterioration, such as worsening posterior headaches.  Thus, in view of Dr. B. W.'s statement, the Board has liberally construed the claim for service connection for headaches, to include as secondary to a cervical spine/upper back disability.  Thus, the Board has recharcterized the claim for service connection for headaches to accurately reflect both the direct and secondary theories of entitlement, as reflected on the title page.

The issues of entitlement to service connection for a cervical spine/upper back disability and entitlement to service connection for headaches, to include as secondary to a cervical spine/upper back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Giving the Veteran the benefit of the doubt, the objective medical evidence is in equipoise as to whether his current bilateral hearing loss disability for VA compensation purposes is related to his in-service acoustic trauma.

2.  The Veteran suffers from tinnitus that is likely related to noise exposure in service or to his service-connected bilateral hearing loss disability.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.§§ 1110, 1131, 1154(a), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2.  Service connection for tinnitus is warranted.  38 U.S.C. §§  1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the appellant nor her representative has raised any issues with the duty to notify or duty to 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. 2016) (applying Scott to a duty to assist argument).

II. Merits Analysis

During his lifetime, the Veteran sought service connection for bilateral hearing loss and tinnitus.  He maintained that his hearing loss and tinnitus were directly related to having flown aboard C 130 aircraft during service in the USAF.  (See VA Form 9, Appeal to Board of Appeals, received by VA in December 2015.)  Regarding his tinnitus, he maintained that it was intermittent during service, but became constant after discharge.  

After a discussion of the laws and regulations governing service connection and those specific to hearing loss claims, the Board will analyze the merits of the claims.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017).  To establish a right to compensation for a present disability, 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- the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially 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) (2017).

Certain chronic diseases, such as sensorineural hearing loss and organic diseases of the nervous system, such as tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.§§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017).  Because sensorineural hearing loss and tinnitus are considered an organic diseases of the nervous system, they are subject to presumptive service connection under 38 CFR § 3.309 (a).  See VA Adjudication Procedures Manual, M21-1, Part III, Subpart iv, Chapter 4, Section G.1.d.

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303 (b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Other organic diseases of the nervous system (sensorineural hearing loss) are listed in section 3.309(a).

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017).  Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b).  Where the degree of hearing loss noted on an entrance examination does not meet VA's definition of a disability for hearing loss under 38 C.F.R.§ 3.385, the claimant is entitled to the presumption of soundness.  McKinney v. McDonald, 28 Vet. App. 15 (2016). 

Lay 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).  For example, a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Jandreau, 492 F.3d at 1377, n. 4.  Also, non-expert witnesses are competent to report that which they have observed with their own senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994). Non-expert nexus opinion evidence may not be categorically rejected.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The complexity of the question and whether a nexus opinion or diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence.  In sum, whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. 

After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant.  38 U.S.C.§ 5107 (b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

For reasons outlined below, the Board will resolve reasonable doubt in favor of the 
Appellant and grant service connection for bilateral hearing loss and tinnitus on a substitution basis.  The Board will discuss each disability separately in the analysis below.

i) Bilateral Hearing Loss 

Regarding Shedden element number one (1) evidence of a current disability, the Veteran was diagnosed with sensorineural hearing loss in both ears and his hearing in the ears met the criteria for a disability as defined by 38 C.F.R. § 3.385 during his lifetime.  (See August 2013 VA audiological examination report.)  Thus, Shedden element number one (1), evidence of a current disability, has been met.

Concerning Shedden element number two (2), evidence of in-service disease or injury, the Veteran indicated in written statements that he had sustained acoustic trauma in service from having flown aboard C-130 aircraft during his longstanding service in the USAF.  A DD 214 covering a period of the Veteran's service in the USAF from June 1984 to June 1989 reflects that his military occupational specialist for the previous 21 years was an instrument specialist.  The Board finds that the Veteran likely suffered excessive noise exposure during his longstanding USAF service.  See VBA Fast Letter 10-35 (September 2, 2010) (VA will concede exposure to hazardous noise where a veteran's duty position is shown to have a "Highly Probable" or "Moderate" probability of such exposure).  The Board accordingly finds that the provisions of 38 U.S.C.§ 1154 (a) are for application in this case, and the Veteran's statements regarding acoustic trauma from having flown numerous flights aboard C-130 aircraft during his long-term service in the USAF as an instrument specialist to be consistent with the circumstances of his service.  Id.  Thus, the Board finds that the Veteran was exposed to acoustic trauma during his period of military service in the USAF.  Id.

The Veteran's entrance audiogram in April 1968, as well as audiograms performed in March 1987 and March 1988, do not show hearing thresholds that meet the criteria for hearing disability under Hensley or 38 C.F.R. § 3.385.  (See April 1968 service enlistment report and audiograms, dated in March 1987 and March 1988).   

A September 1969 audiogram showed some degree of bilateral diminished hearing of 25 decibels in the right ear at 500, 1000 and 3000 Hertz and 25 decibels at 3000-4000 Hertz in the left ear; although, the hearing thresholds did not meet the criteria for a hearing disability in either ear under 38 C.F.R. § 3.385.  Audiometric testing results in September 1969 were as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
25
25
10
25
20
n/a
LEFT
20
20
15
25
25
n/a

Thus, according to Hensley, the Veteran had some degree of hearing loss in the right ear at 500, 1000 and 3000 Hertz and at 3000-4000 Hertz in the left ear.  The demonstrated bilateral hearing loss at is not a "defect."  The term "defect" should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a "disability" under 38 C.F.R. § 3.385.  McKinney, supra. 

The Board notes that on a June 1969 Report of Medical History, the Veteran indicated that he had had ear trouble.  He denied having had hearing loss. 

The Veteran's hearing in both ears returned to baseline at a February 1989 retirement examination.  A review of the February 1989 audiogram does not show hearing thresholds that meet the criteria for hearing disability under Hensley or 38 C.F.R. § 3.385.  (See February 1989 retirement examination report).  On a February 1989 Report of Medical History, the Veteran indicated that he had had ear, nose or throat trouble, and referenced having undergone a tonsillectomy.  He denied having had hearing loss.   

The Board finds the Veteran's lay statements and testimony regarding the date of onset of his bilateral hearing loss disability to be both competent and credible.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (providing that ringing in the ears is capable of lay observation), Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (providing that lay testimony is competent to establish the presence of observable symptomatology, such as varicose veins, and may provide sufficient support for a claim of service connection); see also Goss v. Brown, 9 Vet. App. 109, 113 (1996).  Given that the Veteran served over 20 years in the USAF as an instrument specialist aboard C-130 aircraft during military service, the Board finds that he was exposed to acoustic trauma therein.  38 U.S.C § 1154 (a).

Now, the only question that remains is whether there is a medically sound basis to attribute the post-service findings of a bilateral hearing loss disability to the Veteran's in-service acoustic trauma.  Hensley, 5 Vet. App at 159.  The record contains competing private and VA medical opinions that are supportive of and against the claims, respectively.
In support of the claim is a November 2011 report, prepared by B. W., M. D.  In that report, Dr. B. W. indicated that he had been treating the Veteran for numerous physical complaints and disabilities since the calendar year 2009.  Dr .B. W. related that the Veteran had complained of having had tinnitus and hearing loss as a result of his period of military service, to include having made several hundred flights on C 130 airplanes, which, according to Dr. B. W., would have certainly contributed to his hearing issues.  (See November 2011 report, prepared by B. W., M. D.).  The Board finds Dr. B. W's opinion to be of diminished probative value in evaluating the claim for service connection for bilateral hearing loss because it was unsupported with any rationale.   There are, however, other means by which a physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time, such as in the case of Dr. B. W.'s long-term treatment of the Veteran (i.e., since 2009).  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  While not clearly articulated, it stands to reason that the long-history of treating the Veteran gave Dr. B. W.. intimate knowledge of the Veteran's hearing problems and by that basis alone his opinion is found to be probative.

Evidence against the claim includes a VA audiologist's October 2013 opinion.  (See VA opinion, dated in October 2013, uploaded and received into the Veteran's Legacy Content Manager Documents on October 24, 2013).  After an audiological evaluation of the Veteran in August 2013 and a review of the entire claims file, to include the Veteran's service treatment records, the VA audiologist opined that it was less likely than not that the Veteran's hearing loss was related to his period of military service.  The VA audiologist reasoned:

"The veteran's 1968 enlistment physical and his 1989 retirement physical were compared and a worsening significant threshold shift in hearing was not seen in either ear. The Institute of Medicine carried out a study mandated by Congress and sponsored by the Department of Veterans Affairs to provide an assessment of several issues related to noise-induced hearing loss and tinnitus associated with service in the Armed Forces since World War II. In its landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the IOM stated that "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure.  Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur."

The last exam in service indicated that there had been no clinically significant increase in thresholds for frequencies most commonly affected by noise exposure compared to the first exam in service. While reports of specific military related noise exposure and/or reports of any continuation of difficulties with hearing since service would be considered in formulating an opinion regarding current hearing loss, there is a lack of objective evidence of permanent noise-induced loss of hearing over time in service based on frequency specific audiological testing during time in service. Given these factors, it can be stated that the veteran's current hearing loss is less likely as not due to noise exposure in the military."

The Board finds the October 2013 VA audiologist's opinion to be of reduced probative value in adjudicating the claim for service connection for bilateral hearing loss because it did not address the shift in hearing loss in both ears during the September 1969 audiological evaluation. 

In this case, the Board is presented with an evidentiary record that is against and supportive of the claim for service connection for a bilateral hearing loss disability.  Initially, the Board finds that the Veteran was exposed to acoustic trauma from having flown numerous flights aboard C-130 aircraft during his duties as an instrument specialist during his longstanding service in the USAF.  With regard to a nexus to service that favors the claim, there are B. W's November 2011 opinion, and the Veteran's credible lay statements.  Probative evidence against the claim for service connection for a bilateral hearing loss disability includes a VA examiner's audiologist's opinion issued in October 2013.  Nevertheless, given the entire record, the Board is unable to find that the preponderance of the evidence of record is against the claim for service connection for a bilateral hearing loss disability.  Therefore, the Board finds that with resolution of doubt in the Veteran's favor, service connection for a bilateral hearing loss disability on a substitution basis warranted.  38 C.F.R. § 3.102.

ii) Tinnitus

During his lifetime, the Veteran sought service connection for tinnitus.  He maintained that his tinnitus was related to in-service noise exposure from having made numerous flights aboard C-130 aircraft during his longstanding service in the USAF.  He contended that his tinnitus was intermittent during military service and that it became constant after discharge.  As noted in the preceding analysis for hearing loss, the Board finds his statements that he was exposed to acoustic trauma aboard C-130 aircraft to be consistent with the circumstances of his military service.  38 U.S.C.§ 1154 (a). 

During his lifetime, the Veteran was competent, as a layperson, to testify as to presence of symptoms such as ringing in his ears.  Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom").  Further, in certain situations, lay evidence may be sufficient to diagnose a medical condition.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Moreover, as acoustic trauma in service has already been conceded as noted in the analysis for service connection for a bilateral hearing loss disability, the question is one of nexus to military service. 

As to the issue of nexus, the Board notes that medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of a coexisting hearing loss.  See, e.g., Harrison's Principles of Internal Medicine 182 (Dennis L. Kasper et al. eds., 16th ed. 2005).  Further, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The Merck Manual § 7, Ch. 82 (18th ed. 2006).  In fact, in discussing the etiology of the Veteran's tinnitus in her October 2013 opinion, the VA audiologist discussed the lack of objective evidence of permanent noise-induced damage to hearing over time in service based on frequency specific audiological testing during his period of service..  Under the particular circumstances presented here, the Board is persuaded that the Veteran's tinnitus can as likely as not be attributed to either the same etiology as his service-connected hearing loss, i.e., in-service exposure to noise, or directly to his service-connected hearing loss.  Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus on a substitution basis is warranted.  38 U.S.C.§ 5107 (b); 38 C.F.R. § 3.102 (2017).




ORDER

Service connection for a bilateral hearing loss disability, on a substitution basis is granted. 

Service connection for tinnitus on a substitution basis is granted. 


REMAND

Remand is required for the claims for service connection for cervical spine/upper back disorder and headaches, to include as secondary to a cervical spine/upper back disorder, each to include on a substitution basis.  The Board will discuss each disability separately in the paragraphs below. 

i) Cervical Spine/Upper Back Disability

During his lifetime, the Veteran sought service connection for a cervical spine/upper back disability.  He maintained that he had initially sought treatment for his upper back in the 1970s and that he continued to have problems throughout military service and thereafter.  (See Veteran's statement to VA, received in October 2012). 

The Veteran's service treatment records confirm his assertions.  In summary, they show that beginning around February 1979 until his retirement examination in February 1989, the Veteran had sought treatment for a stiff neck, upper-to-mid back pain and was given assessments that included, but were not limited to, myositis (February 1979); chronic strain (September 1981); questionable nerve compression (September 1982); and, right rhomboid strain (November 1988).  X-rays of the cervical spine, performed in September 1982, were noted to have been normal.  A February 1989 retirement examination report reflects that the Veteran's spine was found to have been "abnormal" as a result of a laminectomy scar and low back pain.  On an accompanying Report of Medical History, the Veteran indicated that he had had back pain.  

Post-service evidence includes private and VA opinions that are supportive of and against the claim, respectively.  Evidence in support of the claim includes opinions, authored by Dr. B. W., dated in November 2011 and January 2014.  In those reports, Dr. B. W. collectively opined that he had treated the Veteran since 2009 for various disabilities, to include cervicalgia and back pain.  Dr. B. W. indicated that he had reviewed the Veteran's service treatment records and that he had found treatment for cervicalgia and back pain.  In his November 2011 report, Dr. B. W. opined, "Certainly I would think that the back neck and joint issues would all be connected to injuries sustained throughout his service and demands of his service as documented in his records." In the January 2014 opinion, Dr. B. W. further opined, "In regards to his neck thoracic and lumbar spinal complaints Mr Walker has been seeking and getting attention for his spine starting in 1971.  He has over 40 different visits for these areas with documented pathology in the form of physical findings/description and imaging from 1971-1989, as well as surgery of his L4 5 lumbar spine in 1974.  I would argue that the disease correlates to his military service (first complaints in 1971-3 years after starting his military service) and has continued throughout his service career to 1989."  (See November 2011 and January 2014 opinions, prepared by B. W., M. D.)  The Board finds Dr. B. W.'s opinions to be of reduced probative value in evaluating the claim for service connection for a cervical spine/upper back disorder because it is unclear exactly what part of the spine he is attributing to military service (i.e., cervical and/or lumbar spine), and the exact diagnosis that had its onset therein.  

Evidence against the claim includes a September 2013 VA examiner's opinion.  After a review of the Veteran's service treatment records, which included a recitation of the facts similar to those previously reported herein, the VA examiner concluded that there was a lack of documented correlation between the Veteran's neck pain shown in service and his diagnosed degenerative disc disease (DDD) of the neck.  The VA examiner opined that because the Veteran's service treatment records did not disclose that he had DDD of the cervical spine, it was less likely that his currently (then) diagnosed DDD of the cervical spine with radiculopathy of the bilateral upper extremities was associated with his service treatment.  (See September 2013 VA examiner's opinion).  The Board finds the September 2013 VA examiner's opinion to be of reduced probative value because it was provided without any medical reasoning and does not address the etiology of all cervical spine disabilities of record, notably cervicalgia, as diagnosed as B. W., M. D. in November 2011.  

Thus, in view of the deficiencies in the private and VA opinions of record in addressing the etiology of the Veteran's cervical/upper back disability, the Board finds that an addendum medical opinion is warranted prior to further appellate consideration of the claim.

ii) Headaches

During his lifetime, the Veteran sought service connection for headaches.  He contended that they began during service in the 1980s and by retirement in 1989, they were treated with daily acetaminophen.  (See Veteran's statement to VA, received in October 2012).  

The Veteran's service treatment records reflects that he was seen for sinus headaches and those associated with a viral syndrome in October 1979 and October 1987, respectively.  On a February 1989 retirement examination, the Veteran's head was evaluated as "normal."  On an accompanying Report of Medical History, the Veteran indicated that he had had headaches.  

Post-service evidence pertinently includes an October 2007 report, prepared by the Johns Hopkins Institution.  In that reported, the Veteran indicated that he had had headaches for the previous 20 years (1987).  There is no opinion of record, private or VA, that discusses the direct service connection component of the claim (i.e, whether the Veteran's headache are etiologically related to, or had their onset during, his period of military service.).  (Parenthetically, the Board notes that VA diagnosed the Veteran with tension headaches during an August 2013 VA examining, but an opinion as to their etiology was not provided at that time). 

Thus, in view of the Veteran's contention during his lifetime that his headaches had their onset during service in the 1980s and that they had continued until retirement and thereafter, the in-service complaints of headaches, to include his report of having had headaches during his February 1989 retirement examination, the Board finds that the claims file should be forwarded to an appropriate VA clinician for an opinion that addresses the nature and onset of the Veteran's diagnosed tension headaches.

In addition, the appellant has not been provided notice in accordance with the Veteran's Claims Assistance Act (VCAA) that addresses the requirements for a claim for service connection for headaches on a secondary basis in accordance with 38 C.F.R. § 3.310 (2014) and Allen v. Brown, 7 Vet. App. 439 (1995).  Thus on remand, the appellant should be provided VCAA notice for the requirements of substantiating the claim for service connection for headaches, to include on a secondary basis.

Accordingly, the case is REMANDED for the following action:

(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.  Send the appellant a corrective VCAA notice that addresses the requirements for a claim of entitlement to service connection for headaches on a secondary basis in accordance with 38 C.F.R. 3.310.  This notice must also inform the appellant of which information and evidence, if any, that she is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on her behalf.

2.  Send the claims file to an appropriate clinician to provide an addendeum medical opinion that addresses the etiology of all of the Veteran's cervical spine/upper back disabilities diagnosed during his lifetime.  The entire claims file must be made available to and be reviewed by the reviewing clinician.  An explanation for all opinions expressed must be provided.

With respect to each diagnosis of cervicalgia and DDD of the cervical spine with radiculopathy into the bilateral upper extremities, the reviewer must state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or was otherwise related to the Veteran's military service, or was manifested to a compensable degree within a year of his discharge from service in June 1980.  

In rendering his or her opinion, the reviewer must discuss the following evidence:  (i) The Veteran's statements that he had neck pain in 1970 and that he had sought treatment throughout the 1980s; (ii) STRS reflecting that the Veteran had initially sought treatment for a stiff neck, upper-to-mid back pain in February 1979 and that he had continued to seek treatment throughout service for his cervical spine and was given assessments that included, but were not limited to, myositis (February 1979); chronic strain (September 1981); questionable nerve compression (September 1982); and, right rhomboid strain (November 1988); (iii) February 1989 retirement examination report reflecting that the Veteran's spine was found to have been "abnormal" as a result of a laminectomy scar and low back pain; (iv) February 1989 Report of Medical History; (v) November 2011 and January 2014 reports, prepared by B. W., M. D., which are favorable to the claim; and (vi), September 2013 VA opinion that is against the claim. 

3.  After any additional records are associated with the claims file, obtain an addendum medical opinion to address the etiology of the Veteran's diagnosed tension headaches.  The entire claims file must be made available to and be reviewed by the reviewer, and it should be confirmed that such records were available for review.  An explanation for all opinions expressed must be provided. 

The reviewer must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tension headaches had their onset during his period of military service. 

The reviewer must specifically comment on the following evidence:  (i) The Veteran's statements that he began to experience headaches during service in the 1980s, and by retirement, he had treated them with acetaminophen on a daily basis; (ii) STRs, dated in October 1979 and October 1987, reflecting that the Veteran had sinus headaches associated with a viral syndrome, respectively; (iii) February 1989 retirement examination report reflecting that the Veteran indicated that he had had frequent or severe headaches; and, (iv) October 2007 report, prepared by the Johns Hopkins Institute reflecting that the Veteran had had headaches for 20 years (1987). 

If and only if the Veteran's cervical spine/upper back disability is service-connected pursuant to the development requested herein, should the reviewer  provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches were caused or aggravated by the cervical spine/upper back disability. 

If the reviewer determines that the Veteran's headaches were aggravated (permanently worsened) by the cervical spine/upper back disability, the VA examiner should identify the baseline level of the headaches and the degree of disability due to aggravation.

4.  Ensure compliance with the directives of this remand.  If any report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims for service connection for a cervical spine/upper back and headaches, to include as secondary to a cervical spine/upper back disability, each on a substitution basis must be adjudicated.  If the claims remains denied, a supplemental statement of the case must be provided to the appellant and her representative.  After the pellant and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs