Citation Nr: 21065474 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-11 586 DATE: October 26, 2021 ORDER Entitlement to service connection for headaches disability is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's headaches disability is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to August 1966. This case initially came to the Board of Veterans' Appeals (Board) on appeal from July 2014 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied entitlement to service connection for bilateral hearing loss, migraine/headaches, right foot disability, malaria, Epstein-Barr Virus, and an acquired psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court set aside the Board's August 2019 decision, in part, and remanded to the Board the issues of entitlement to service connection for bilateral hearing loss and headaches for adjudication in compliance with the Court's decision. The Court found inadequate statement of reasons or basis for denying service for headaches and bilateral hearing loss. The part of the Board's decision denying service connection for right foot disability and an acquired psychiatric disorder was affirmed, and the remainder of the appeal was dismissed. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). (e.g., organic diseases of the nervous system (including migraine headaches and sensorineural hearing loss)). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). In addition, 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 1. Headaches The Veteran contends that his headaches disability is related to service, or alternatively, to his service-connected traumatic brain injury (TBI). For the following reasons, the Board finds that service connection is warranted. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a March 2016 VA examination report shows a diagnosis of headaches. Thus, the first element of service connection has been met. The evidence of record indicates that an in-service disease requirement has been met. The Veteran's service treatment records (STRs) show complaints and treatment for headaches in December 1963 and March 1965. A March 2016 VA examination report shows the Veteran reported that when stationed in Germany as security at airport and had encounter with security threat, was struck by chair and went to Frankfurt hospital for treatment. He noted having headaches after the incident. In an April 2016 statement, the Veteran reported that while serving in Germany, he was involved in a fight, which resulted in him being hit in the head with a chair and being knocked unconscious. He asserted that he has had headaches off and on since then. The Veteran is competent to report headaches in service and continuous symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran's STRs confirm the presence of headaches in service, and his reports are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board finds that the reports of headaches in service and continuous symptoms in the years since service are credible. This is sufficient to meet the second element of service connection. In a June 2016 VA examination report, the examiner opined that is less likely than not the Veteran has headaches primarily due to his head trauma or secondary to his TBI. The examiner's rationale was the complete lack of documentation of headaches in the medical record, either in the STR, the private medical records, or the VA clinical records. In a September 2016 letter, private Dr. M.D. opined that the incident in 1963 (approximately) causing injury to the Veteran's head has caused the headaches that are with him today. Dr. M.D explained that the Veteran has been a patient since 1993 and suffers from headaches on a daily basis. In this case, the Board finds that the June 2016 VA opinion that the Veteran's headaches is not related to service of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the examiner rendered the opinion, in part, that the Veteran's headaches was not related to service, because there was a complete lack of documentation of headaches in the STRs. However, the STRs reflect complaints and treatment for headaches in December 1963 and March 1965. Additionally, the examiner failed to consider competent and credible evidence of the Veteran's report of the onset of headaches in service, and the continuation of those symptoms in the years since service. Although Dr. M.D. did not provide a detailed rationale for his September 2016 opinion, he nonetheless concluded based upon an examination of the Veteran and medical evidence, the current headaches are caused by the in-service injury. The opinion is thus entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner did not explicitly lay out the examiner's journey from the facts to a conclusion, did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the evidence of record. For the foregoing reasons, the Board finds that the STRs, current diagnosis, and private medical opinion indicating that headaches had its onset in service, provide a sufficient basis to grant service connection for headaches. Thus, service connection is warranted for headaches disability on a direct basis. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. 2. Bilateral Hearing Loss In the March 2021 Memorandum Decision, the Court agreed with both parties that the Board provided inadequate statement of reasons or basis denying service connection for hearing when it inaccurately found that the Veteran's hearing acuity improved during serviced. Specifically, the audiogram that the Board relied on to show an improvement in hearing acuity during service was not the Veteran's separation examination, but rather, his November 1962 enlistment examination. Also, the audiogram that the Board noted as showing worse results was not the Veteran's entrance examination but his August 1966 separation examination. The Court concluded that this was prejudicial because it may have affected the Board's analysis as to whether there was evidence of hearing loss or a threshold shift in service. The Board has identified and labeled the Veteran's November 1962 entrance audiogram and August 1966 separation audiogram, as directed by the March 2021 Memorandum Decision. In this case, the evidence of record, particularly a July 2014 VA examination report, reflects current bilateral hearing loss disability. The audiometric scores on that examination reflect thresholds above 40 decibels at multiple frequencies in both ears. The evidence of record also supports a finding of in-service noise exposure. At his November 1962 military entrance examination, his ears were examined and determined to be normal. Audiometric testing conducted at entrance showed puretone thresholds, in decibels as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 5 (15) / 5 (10) LEFT 0 (15) 0 (10) 0 (10) / 0 (5) At the Veteran's August 1966 military separation examination, his ears were examined and determined to be normal. Audiometric testing conducted at separation showed puretone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 5 (15) 0 (10) 5 (10) LEFT 15 (30) 10 (20) 10 (20) 5 (15) 5 (10) (As the examinations were conducted prior to January 1, 1967, the Board assumes that the results were reported in American Standards Association (ASA) units. In September 1975, the regulatory standard for evaluating hearing loss was changed adopting International Organization Standardization (ISO) and American National Standards Institute (ANSI) units. VA's practice is to convert the ASA units to ISO-ANSI units. Thus, the November 1962 and August 1966 audiometric testing results, originally presumably recorded using ASA standards, have been converted to ISO-ASNI standards and are represented above by the figures in parenthesis). In an April 2014 statement, the Veteran reported that the onset of his hearing loss was during military service while working oversees. He worked mostly with Pan American World Airlines, Seaboard World Airlines, and with TWA. The Veteran indicated they had orders to stay with the aircraft until the cargo compartment was closed and reopened. He further indicated that all engines were going, and there was never any ear protection provided. In his September 2014 notice of disagreement (NOD), the Veteran reported that he spent four years on the flight line behind jet engines without hearing protection. He indicated that since that time he has sustained substantial hearing loss as a result. The Veteran's DD Form 214 shows that he worked as an air postal squadron. His personnel records show he served in Germany from April 1963 to April 1965, and in Brussels from May 1965 to August 1966. The Board finds the Veteran's statements credible. Therefore, in-service noise exposure is established. The Veteran was afforded a VA audiological examination in July 2014. The Veteran reported that he served in the Air Force from 1962-1966. He was a carrier and took mail from the aircraft to other places or other carriers while deployed in Germany and in Belgium. He experienced excessive noise in the form of aircraft noise with all engines running. Hearing protection was not used. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 50 LEFT 20 25 35 45 55 The average pure tone thresholds were 33 decibels on the right and 40 decibels on the left. Speech discrimination score using the Maryland CNC word list was 98 percent in the right ear and 94 percent in the left ear. The examiner determined a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or the result military noise exposure. The examiner explained that upon enlistment and separation, hearing was within normal limits with no significant shifts. The examiner further explained that with normal hearing at separation this clearly documents a delayed onset in hearing loss. The examiner also noted that the Veteran also reports a delayed onset of the hearing loss. The Board finds the July 2018 VA opinion that the Veteran's hearing loss and tinnitus were not related to service are of no probative value, as they were based on the absence of in-service evidence of bilateral hearing disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the examiner did not explain the significance of that fact or address the threshold shifts that did appear to occur during service indicating a decline in hearing acuity. Moreover, the opinion does not consider the Veteran's competent and credible statements of noise exposure in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). There is no other probative evidence of record which attributes the Veteran's current bilateral hearing loss to any other cause than in-service noise exposure. The Veteran indicated in his lay statements that he experienced hearing loss in and since service. The Board finds the Veteran's statements in this regard to be competent and credible. Moreover, VA laws and regulations require an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). After so doing, and with reasonable doubt resolved in the Veteran's favor, the Board finds that the Veteran's competent and credible lay statements regarding the in-service noise exposure, hearing loss in and since service, and the clinical evidence showing a current diagnosis of bilateral hearing loss, provide a sufficient basis to grant service connection for bilateral hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.