Citation Nr: 18150270 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-21 222 DATE: November 14, 2018 ORDER Entitlement to a compensable rating for left ear hearing loss is withdrawn. Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for an adjustment disorder with depression as secondary to service-connected tinnitus is granted. FINDINGS OF FACT 1. During the October 2016 Board Hearing and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to a compensable rating for left ear hearing loss. 2. The Veteran suffers from a chronic headache condition which started during service. 3. The Veteran’s an adjustment disorder with depression was aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal has been met for the claim for entitlement to a compensable rating for left ear hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for an adjustment disorder with depression as secondary to service-connected tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and September 2015 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Withdrawal 1. Entitlement to a compensable rating for left ear hearing loss is withdrawn. 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew his appeal of the claim of entitlement to a compensable rating for left ear hearing loss at his October 2016 Board Hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. §3.303(a). Service connection will be established on a secondary basis for current disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). For the VA-defined chronic diseases listed in 38 C.F.R. § 3.309(a), including migraines as an organic disease of the nervous system, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service – no matter how remote – will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including migraines as an organic disease of the nervous system, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for migraine headaches is granted. The Veteran has asserted from the outset that his migraine headaches were caused by his military service. The Veteran’s service treatment records show that he was treated for headaches during service. Specifically, the Veteran was treated for right-sided headaches accompanied by blurred vision. See September 1985 Emergency Care Note. In one instance the headache lasted 2 hours and in another instance the Veteran’s headaches lasted 48 hours. See September 1985 Emergency Care Note; September 1985 Emergency Care Note. The physician diagnosed the Veteran with cluster headaches. See September 1985 Emergency Care Note. The Veteran’s medical treatment records show he has had a history of migraines. See February 1994 Emergency Department Record (noting the Veteran’s treatment for a migraine and that the last one was over a year ago); February 1996 Emergency Department Record (reporting the Veteran’s complaint of a right sided headache for the past 2 weeks); June 2014 Primary Care H&P Note (reflecting that the Veteran previously took medication for migraines and now places an ice bag on his head); December 2014 Surgery Consult (noting the Veteran has a medical history of migraines). During his October 2016 Board hearing the Veteran stated that he continued to have migraines approximately once a year since leaving service. The Veteran stated that while he does not have daily headaches, his headaches can last from 3 weeks to a month when they do occur. He also noted that while he was previously on medication for his headaches he currently attempts to treat them with an ice pack on his forehead. See October 2016 Board Hearing. The Board finds that the Veteran’s description of his symptoms and treatment for his headache condition to be competent and credible. The Board notes that the Veteran’s statements with regards to his symptomatology have been consistent throughout the record and so affords them high probative value. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a layperson is competent to report a contemporaneous medical diagnosis); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (lay testimony is competent as to matters capable of lay observation). The Veteran was afforded a VA examination in August 2015. The examiner stated that he could not “create a nexus connecting the [Veteran’s] purported headaches to service connected events.” See August 2015 VA C&P Examination Report. The Board acknowledges the negative medical opinion in the way of the August 2015 VA examination report. However, the Veteran has had an occurrence of headaches in service and has continued to have headaches with the same symptoms every one to two years since service. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted. Thus, the Veteran’s claim for service connection for migraine headaches is granted. 3. Entitlement to service connection for an adjustment disorder with depression as secondary to service-connected tinnitus is granted. The Veteran asserts that his current psychiatric disorder was caused or aggravated by his service-connected tinnitus. He maintains that his tinnitus interferes with his ability to sleep and that this causes irritability and rash behavior. The Veteran was afforded a VA examination in June 2015. The examiner found the Veteran to have a diagnosis of adjustment disorder with depression. The examiner noted that the Veteran’s adjustment disorder with depression was caused by recent life stressors and exacerbated to some degree by his service-connected tinnitus, but she was not able to determine the exact extent to which his tinnitus affected his disorder. See June 2015 VA C&P Examination Report. (Continued on the next page)   Accordingly, the Board finds that as the Veteran’s adjustment disorder with depression was aggravated by his service-connected tinnitus. Thus, service connection for adjustment disorder with depression as secondary to service-connected tinnitus is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel