Citation Nr: 21063934 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-06 056A DATE: October 18, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a headache disability is remanded. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 1983. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, air, or space service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (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 claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Hearing loss disability The Veteran contends he has a bilateral hearing loss disability due to service, specifically due to in service noise exposure to generators, electronic equipment, weapons, and trucks. See, e.g., June 2021 VA examination report. 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. A VA examination was undertaken in February 2015. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 25 LEFT 20 15 20 30 25 Speech discrimination was 96 percent (Maryland CNC word list) in the right ear and 98 percent in the left ear. The examiner noted both ears showed sensorineural hearing loss in the frequency range of 500 to 4000 Hertz, with normal hearing and noted that the Veteran had normal hearing sensitivity for VA purposes per the regulatory requirements of 38 C.F.R. § 3.385 A VA examination was undertaken in June 2021. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 30 25 LEFT 20 20 25 30 25 Speech discrimination was 94 percent (Maryland CNC word list) in the right ear and 96 percent in the left ear. The examiner noted both ears showed sensorineural hearing loss in the frequency range of 6000 Hertz and and above, with normal hearing sensitivity for VA purposes. The accompanying VA opinion noted the Veteran had had normal hearing sensitivity for VA purposes per regulatory requirements of 38 C.F.R. § 3.385 The Board has considered the Veteran's statements. The Board accepts that the Veteran has a disease or injury (damage to the inner ear). However, VA law requires disease or injury and resulting disability. Disability is defined by law, noted above. The Veteran is competent to report his hearing is worse than it was previously (i.e., he cannot hear as well as he once did), however, he is not able to find that he has a hearing loss disability within the meaning of the VA regulation. Therefore, while the lay statements have been considered, they are of little probative value regarding the existence of a disability. The competent evidence is against a finding of a current hearing loss disability as defined at 38 C.F.R. § 3.385. Due to the absence of proof of a present disability, there is no valid claim for service connection. Entitlement to service connection requires a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The existence of disability as defined by section 3.385 is not subject to lay observation. It requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent in this case. There is simply no probative evidence of current hearing loss disability within the meaning of the VA regulation. The Board gives more probative weight to the VA opinions, which are persuasive on these matters. The Board concludes that the preponderance of the evidence is against the claim for entitlement for service connection for a hearing loss disability and the claim must be denied. In reaching this determination, we repeat that a grant of service connection (under sections 1110 and 1131) requires the presence of residual of disease or injury and the presence of disability. Here, although there is evidence of disease, there is no competent evidence of disability as defined by section 3.385. REASONS FOR REMAND 2. Headache disability A Board remand dated in June 2021 notes that the Veteran's reported headaches may be related to his mental health disorder. The Board found that a supplemental opinion to an August 2020 DBQ should be obtained if, on remand, the Veteran is granted service connection for an acquired psychiatric disability. In this eventuality, the examiner should opine on whether the Veteran's report of headaches is sufficient to warrant a diagnosis of migraines. Also, even if not, whether it is as likely as not an acquired psychiatric disability (if first determined to be service connected) causes or aggravates any existing headache disability. In September 2021, the Regional Office granted service connection for major depressive disorder. A VA opinion was obtained in July 2021. This noted that at no time has the Veteran been diagnosed with migraine headaches. The headache condition has been diagnosed as acute intermittent tension headaches. Furthermore, the VA opinion for acquired psychiatric disorder does not connect the Veteran's depression to service and specifically noted the Veteran does not have service-connected PTSD. Psychosomatic complaints are common with psychological conditions and though it is possible the headaches may be linked to those conditions; they are not service connected. Therefore, it is less likely than not that the Veteran's headaches are due to a service-connected psychological condition. No psychological condition has been attributed to service. This renders the aggravation question moot. Given that the VA opinion noted that vague psychosomatic complaints are common and that these may be linked to tension headaches, it did not actually address whether acute intermittent tension headaches disability was due to or aggravated by service-connected major depressive disorder in the Veteran's case. Given the above, an additional opinion is necessary. The prior remand instructions from the Board are substantially reproduced below. The matters are REMANDED for the following action: 1. Obtain a VA opinion concerning whether the Veteran has a headache disability as a result of service-connected disability. Complete rationale should be offered for all opinions offered. To this end, the examiner should provide responses to the following question: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) the Veteran has a headache disability. (b) If determined he does, is it at least as likely as not (i.e., probability of 50 percent or greater) the Veteran's headache disability is caused by his service-connected major depressive disorder. (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) the Veteran's headache disability is aggravated by his service-connected acquired psychiatric disability. Aggravation means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. (d) Assuming a headache disability, is it a symptom of the psychiatric disorder? H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.