Citation Nr: 18142810 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-32 319 DATE: October 16, 2018 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee strain with patellofemoral chondromalacia, is dismissed. REMANDED Entitlement to service connection for a right ankle strain, to include as secondary to service-connected right knee strain with patellofemoral chondromalacia, is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee strain with patellofemoral chondromalacia, is remanded. FINDINGS OF FACT 1. The Veteran’s left ear hearing impairment was no worse than Level II. 2. By letter dated April 2016, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim of entitlement to service connection for a left knee disability. 3. The Veteran’s current diagnosed migraine headache disability was aggravated during active service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left ear hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for withdrawal of the issue of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 2007 to October 2007 and from September 2010 to June 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service Connection Migraine Headaches The Veteran asserts that his migraine headache disability was worsened by his period of active service. In March 2016, the Veteran was afforded a VA examination. The examiner indicated that the Veteran’s migraine headaches existed prior to his active service. The examiner opined that there was no clear and convincing evidence that the Veteran’s pre-existing migraine headache disability was not worsened beyond its normal progression. In reaching this conclusion, the examiner noted that the Veteran experienced progressively worsening symptoms and frequency during his period of active service, until he began to take anti-depressant medication. In a subsequent March 2016 VA addendum opinion, the examiner reported that, as the Veteran had only a single documented noted in his service treatment records (STRs), it was difficult to attribute military service to an aggravation of a pre-existent condition. Additionally, he indicated that there was inadequate data to demonstrate that the Veteran’s post-service migraine headaches was on an accelerated progression compared to a normal progression from the pre-existent condition. The Board finds that the original March 2016 VA examination and opinion report is adequate because the examiner reviewed the claims file and discussed relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Conversely, the Board finds that the second March 2016 VA opinion is not adequate, as the examiner did not provide an opinion with regard to whether the Veteran’s headaches were aggravated by his period of active service, as the examiner indicated that he did not have sufficient information to provide such an opinion. The Board finds that the evidence for and against the claim of entitlement to service connection for migraine headaches is at least in equipoise. In this regard, the initial March 2016 VA examination report indicates that there is no evidence that the Veteran’s migraine headaches were not worsened by his period of active service. Moreover, in his November 2015 substantive appeal, the Veteran reported that he was on constant medication for his migraines. Notably, a review of the medical record does not reveal that the Veteran used constant medication to treat his migraine headache disability prior to his period of active duty. As such, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim Left Ear Hearing Loss The Veteran has asserted that he is entitled to an initial compensable rating for his service-connected left ear hearing loss disability. The Veteran received a VA audiology evaluation in August 2013. At that time, the examiner noted that the functional impact of the Veteran’s hearing loss on his daily life included difficulty hearing, and louder speech. Audiological testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Left Ear 25 15 25 25 22.5 Speech recognition ability was 88 percent in the left ear. The examiner diagnosed left ear hearing loss. Applying those values to the rating criteria results in a numeric designation of Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in the left ear to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The August 2013 VA examiner clearly identified the effects that the Veteran’s left ear hearing loss disability had on his daily life. Therefore, the Board finds that the VA audiology evaluation reports are in compliance with the requirements of Martinak. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the VA Medical Center treatment notes of record that the Veteran has symptoms of left ear hearing loss disability that are worse than those reported at his VA examinations. Based upon the results that are most favorable to the Veteran, the Board finds that the Veteran is not entitled to a compensable rating for his left ear hearing loss disability. There is no indication from the record that the Veteran’s hearing acuity in his left ear is worse than Level II. Further, the Veteran does not have exceptional patterns of hearing loss. 38 C.F.R. § 4.86. The results of the Veteran’s VA audiology evaluations fall within the schedular criteria for a noncompensable rating. Therefore, the criteria for a initial compensable rating have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant’s disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of left ear hearing loss disability are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned by the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular rating consideration is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial compensable rating for left ear hearing loss disability. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. By letter dated April 2016, the Veteran withdrew his appeal regarding the issue of entitlement to service connection for a left knee disability. As there remains no allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review the claim. Accordingly, the issue must be dismissed REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection- Right Ankle In August 2013, the Veteran was afforded a VA examination. The examiner diagnosed a right ankle strain and opined that the Veteran’s right ankle strain was less likely than not the result of his right knee disability. The Board finds the August 2013 VA opinion is inadequate to adjudicate the claim. In this regard, the examiner did not address whether the Veteran’s right ankle disability was aggravated by his service-connected right knee disability. Therefore, the Board finds that the Veteran should be afforded a new VA examination and medical opinion to determine the nature and etiology of his right ankle disability. Service Connection- Low Back Disability In March 2016, the Veteran was afforded a VA examination. The examiner diagnosed low back pain and opined that the Veteran’s low back disability was not the result of a knee condition. The Board finds the March 2016 VA opinion is inadequate to adjudicate the claim. In this regard, the examiner did not address whether the Veteran’s low back disability was aggravated by his service-connected right knee disability. Therefore, the Board finds that the Veteran should be afforded a new VA examination and medical opinion to determine the nature and etiology of his low back disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s right ankle disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s right ankle disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s right ankle disability was caused or chronically worsened by a service-connected right knee disability. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s low back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lower back disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lower back disability was caused or chronically worsened by a service-connected right knee disability. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page)   5. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel