Citation Nr: 1802726	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO. 13-01 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for migraine headaches and nausea.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. G. Perkins, Associate Counsel





INTRODUCTION

The Veteran served on active duty from September 1966 to July 1969 and as a reservist from July 1969 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Veteran's original February 2010 application for benefits listed his claim of entitlement to service connection for headaches and nausea as a single claim. Throughout the appeal, the Veteran reported that his complaint of nausea only occurs when he experienced a headache. Additionally, since nausea by itself is not a separate disability for VA compensation purposes, the Board has recharacterized this issue on appeal as reflected on the title page. Id.

The Veteran testified before the undersigned Veterans Law Judge in May 2014. A transcript of that hearing is associated with the record.

The issues were previously before the Board in March 2015 and August 2017 and remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).  


FINDINGS OF FACT

1. The Veteran does not have a hearing loss disability for VA compensation purposes.

2. The probative and competent evidence of record is in equipoise as to whether the Veteran's headache and nausea disorder was incurred during service.


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2017).

2. Affording the Veteran the benefit of the doubt, the criteria for service connection for a headache and nausea disorder have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). 

Alternatively, service connection for certain chronic diseases, including migraine headaches, may be established under 38 C.F.R. § 3.303 (b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § § 3.307.

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. Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004). 

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006).

Hearing Loss

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). 

The Veteran is seeking entitlement to service connection for a hearing loss. The results of an audiological examination conducted at enlistment in October 1965 (after converting the units in decibels for the audiological examination, to the current International Standards Organization-American National Standards Institute (ISO-ANSI), were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
-
-5
LEFT
15
0
0
-
-5

In July 1969, the Veteran was given separation examination. During the separation examination, the Veteran completed a Report of Medical History form. On that form, the Veteran answered "no" to the question asking if he had had hearing loss." The audiological examination, pure tone thresholds, in decibels, was as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
-
0
LEFT
55
45
20
-
10

The examiner noted partial deafness, left ear.

The Veteran was afforded a VA audiological examination in May 2011 during which he reported to the examiner that he was a finance clerk during service, and served one year in Vietnam where he slept next to an artillery unit that fired all night long. He was also exposed to noise exposure from C-130 planes and small arms fire during training. The only post-military noise exposure the Veteran reported was operating lawn equipment without hearing protection.

The audiological examination, pure tone thresholds, in decibels, was as follows:

	


HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
20
20
LEFT
15
15
15
20
35

Those test results did not show a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385.
 
The Board remanded the claim in March 2015 remand for an examination that would address the significance of the fact that left hearing loss meeting the criteria for 38 C.F.R. § 3.385 was identified at the time of the Veteran's separation examination in July 1969, but was not shown on VA examination in May 2011. The Veteran was afforded a VA examination in January 2016. 

The audiological examination, pure tone thresholds, in decibels, was as follows:

	


HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
25
25
LEFT
15
20
20
20
30

Those findings do not show a hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. 

Pursuant to the Board's August 2017 remand, a supplemental medical opinion was obtained in September 2017, to clarify why the separation audiological examination in July 1969 showed "significant hearing loss" but current audiological testing did not show left ear hearing loss for VA compensation purposes.

In the September 2017 addendum opinion, the audiologist stated: "I can only speculate at the reason for the difference between his separation exam, in 1969 and the hearing exam performed in 2016." As an example of how this could occur, the audiologist proffered that the separation examination could have been conducted too soon, following noise exposure, which would show a temporary threshold shift. The examiner explained if that were the case, the Veteran's pure tone thresholds could have improved over time.

After a review of the evidence of record, the Board finds that service connection is not warranted for a hearing loss disability because audiologic testing does not show the Veteran has a hearing loss disability for VA compensation purposes, now or at any time during the appeal period. A left hearing loss disability meeting the criteria for VA compensation purposes was identified at separation from service, but was not shown on subsequent VA examinations. A VA audiologist explained that the testing at separation may have been conducted shortly after noise exposure, which would cause a temporary threshold shift. While the Veteran believes he currently has hearing loss disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Kahana v. Shinseki, 24 Vet. App. 428 (2011). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. 

The Board finds that the audiological examination results in the record provide scientific evidence demonstrating the Veteran's hearing acuity and also the September 2017 audiologists opinion explaining how and why the Veteran could have shown partial deafness at separation, but no longer have a current hearing loss disability for VA compensation purposes to be more persuasive. As such, the Board finds that the Veteran's assertion of hearing loss disability due to in-service noise exposure does not overcome the requirement to have a currently diagnosed disability as defined by 38 C.F.R. § 3.385, Thus, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Headaches

The Veteran contends that his headaches started within one year of his military service and should therefore be service connected.

Turning to the evidence of record, the Veteran had an entrance examination in October 1965. During that examination, the Veteran completed a Report of Medical History where he answered "yes" to the question asking if he has or ever had frequent or severe headaches. The examiner documented "[h]eadache - mild - infrequent. States that he had migraine headaches? - relieved [with] aspirin!" There was no defect or diagnosis noted on the report of physical examination conducted at the same time. 

In the rating action on appeal, the RO denied service connection because the Veteran had a pre-existing headache disability and there was no evidence that the condition was aggravated by service. The Board finds that the basis of that determination was incorrect because the Veteran is presumed sound at entry to service. Although, the examiner documented the Veteran's report of having had migraine headaches, the examiner's inclusion of the Veteran's statement with a question mark indicates there was some doubt. It is significant that the examiner did not include any related diagnosis of a headache disability or otherwise note any pertinent defects. Thus, as no defect noted at enlistment, the Veteran is presumed sound.  

At his separation in July 1969, the Veteran was given an examination where he once again completed a Report of Medical History. On this report, the Veteran answered "no" to the question about frequent or severe headaches. 

In April 2010, the Veteran submitted his private medical records. Included with these records was a September 1996 record from the Veteran's primary care physician (PCP) stating that the Veteran was seeking treatment for his migraine headaches. Of note the PCP stated that the Veteran used to have migraine headaches "when he was in his 20's."

Another private record from September 2001 reported that the Veteran had a past medical history of migraines for which he was prescribed medication A record from February 2003 shows that the Veteran sought treatment for a migraine headache from his PCP. His PCP stated that the Veteran was complaining of nausea and vomiting with his migraine headache and required non-oral administration of medication to treat his headache and nausea. 

March 2008 private records document the Veteran sought treatment for his migraine headaches. His PCP documented that his symptoms "began years ago," and that he gets migraines about once per week that generally last all day. 

During his May 2014 Board hearing, the Veteran testified that that he couldn't recall whether he had headaches during service; saying "I probably did, I just can't recall." The Veteran also stated that while on duty with the reserves, he reported to sick call for headaches but they didn't have medication for his migraines. However, they were able to administer "shots" to him for his nausea. The Veteran also testified that he first visited his PCP for headaches in 1969 or 1970, and that he was referred to a neurologist in the early 1970's. However, despite attempts to obtain these records, both the Veteran's neurology records and service treatment records from his time in the reserves are unavailable. 

Pursuant to the Board's March 2015 remand, the Veteran was afforded a VA examination in January 2016. During the examination, the Veteran reported to the examiner that his headaches started in high school, were mild and treated with aspirin. The Veteran stated that after discharge, his headaches became migraines and he sought treatment for his migraine headaches in the early 1970's. The Veteran further reported to the examiner that his PCP could not help him and referred him to see a neurologist who put him on Inderal but it didn't help. 

The January 2016 examiner provided a negative opinion, based in part on the assumption that the Veteran's headaches preexisted service. The examiner referred to the Veteran's Reports of Medical History at enlistment and separation, as well as the absence of any documentation of treatment in service. The Board determined that opinion was inadequate, given the inaccurate premise that a headache disability preexisted service, and remanded the claim in August 2017 to obtain a medical opinion that would enable the Board to address the presumption of soundness. 

A supplemental medical opinion was obtained in September 2017. In response, the VA examiner provided an addendum opinion stating that the Veteran's headache condition clearly and unmistakably existed prior to entering military service. As rationale supporting the opinion, the examiner referred to the Veteran's self-reported medical history form completed during his entrance examination where the Veteran reported he has or had "frequent or severe headaches." The examiner also referenced the Veteran's statements made during his January 2016 VA examination that his headaches started while he was in high school as clear and unmistakable evidence that his headaches preexisted service. 

The examiner further opined that there was clear and unmistakable evidence that the Veteran's preexisting headache disorder was not aggravated by his military service. As rationale supporting the opinion, the examiner referenced the Veteran's self-reported medical history provided during his separation examination in July 1969 where the Veteran stated he was in "good health" and that he also answered "no" to the question asking if he has or had "frequent or severe headaches." Additionally, the examiner referenced the Veteran's reported past medical history provided during his January 2016 VA examination, where he stated that he did not have headaches while in Vietnam. The examiner stated this clearly shows that the Veteran's condition was not aggravated by service. 

The examiner then discussed the Veteran's statements and medical treatment records regarding after he left service. The Veteran stated that his headaches restarted in the early 1970's. The examiner reasoned that the Veteran left service in July 1969 and that stating an event occurred in the "early 1970's" as a reference to time is not normally associated within one year after July 1969. The examiner also discussed the Veteran's private medical records from September 1996 where his treating physician stated that the Veteran used to have migraine headaches in his twenties but has not had them for 20 years but was getting migraine headaches again. The examiner used these statements to support the opinion that the Veteran's active duty service did not aggravate his migraine condition beyond its natural progression.

To rebut the presumption of soundness, there must be clear and unmistakable evidence both that a headache disability preexisted service and was not aggravated by service. The September 2017 opinion includes the examiner's consideration of the "clear and unmistakable" standard in providing the negative opinion, but the Board finds the opinion does not meet that standard. Specifically, the finding as to the second prong, inservice aggravation, fails because the examiner does not consider the Veteran's competent report that he experienced migraine headaches within one year of leaving active duty (i.e., that he sought treatment while on Reserve duty and was referred to a private neurologist). Thus, the presumption of soundness has not been rebutted and service incurrence of migraine headaches is shown.  

The remaining question is whether there is a nexus between the in-service migraines and his current disability. Affording the Veteran the benefit of the doubt, the Board finds there is.  

Although the Veteran could not recall whether he experienced headaches while on active duty, he provided sworn, credible testimony that he sought treatment for migraines within one year of separation, including while on Reserve duty. The fact that the there are no STRs to document these occurrences, is not proof that these incidences did not transpire. Furthermore, the Board notes that other STRs, such as the Veteran's annual physical examination reports are also not available.

Post-service medical records document present manifestations of migraines and evidence of continuity of symptomatology, including references to having had headaches "in his 20's" and that the headaches began "years ago." The Veteran has testified that his migraines continued.  

The Veteran has consistently reported that his migraine headaches began almost immediately after service. The Board finds the Veteran's testimony that he started having migraine headaches almost immediately after leaving service credible. Furthermore, the Veteran's statements that he sought treatment in the early 1970's can be construed to be within one year from his July1969 separation from service. 

Although the VA opinions are negative as to direct service connection, the Board affords them little probative weight because they were based on the premise that the headaches preexisted service and do not give any consideration to the Veteran's competent, credible, assertions of manifestation within one year and continuous symptomatology since service. Service connection for a migraine headache and nausea disability must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for migraine headaches and nausea is granted.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs