Citation Nr: 21067542 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-46 063 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable rating for posttraumatic stress disorder and traumatic brain injury (TBI) prior to April 15, 2020, a rating in excess of 40 percent beginning April 15, 2020, and a rating in excess of 70 percent beginning June 23, 2020, is remanded. Entitlement to an initial compensable rating for migraine headaches associated with posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had bilateral hearing loss as defined by VA regulatory standards at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1988 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) from the April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an October 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes that in a decision of February 2021, the RO denied service connection for PTSD, stating that a stressor was conceded based on the Veteran's receipt of the Combat Action Ribbon, but the evidence did not show a current diagnosis. Subsequently, however, in a rating issued in July 2021, the RO recognized the PTSD as being service-connected, and rated it together with the Veteran's traumatic brain injury. The effective date of the grant of PTSD was noted to be June 23, 2020. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Hearing loss for VA compensation purposes is defined by 38 C.F.R. § 3.385. Hearing loss meets the regulatory requirements of 38 C.F.R. § 3.385 when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is at 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2012 and September 2020 VA examiners evaluated the Veteran and determined that, while he experienced subjective symptoms of difficulty hearing in quiet and environments with background noise, he did not have a diagnosis of bilateral hearing loss. Further, despite consistent treatment, VA treatment records do not contain a diagnosis of bilateral hearing loss. While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, entitlement to service connection for bilateral hearing loss is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for post traumatic stress disorder and traumatic brain injury (TBI) prior to April 15, 2020, a rating in excess of 40 percent beginning April 15, 2020, and in excess of 70 percent beginning June 23, 2020, is remanded. The Veteran contends that his service connected PTSD with TBI warrants higher ratings throughout the appeal period. As discussed below, the Board finds that a remand is warranted for the Veteran to undergo another VA headache examination as the Veteran has alleged that his September 2020 headache examination was inadequate. The Board notes that the Veteran's service connected headache condition is a residual of his service connected TBI. Notably, at the Veteran's September 2020 VA TBI examination, the examiner did not appear to consider the same level of severity of symptoms that is reflected by the Veteran's lay statements and recent VA treatment records (October 2020 statement that the Veteran has prostrating attacks once a week; March 2021 treatment note stating that the Veteran's anxiety has worsened over the last year). Therefore, while this matter is being remanded, the Board finds that the Veteran should be afforded another VA TBI examination. Additionally, the examiner should provide a retrospective opinion, if possible, as to the severity of the Veteran's TBI (as outlined in the VA TBI disability benefits questionnaire) prior to April 15, 2020. 2. Entitlement to an initial compensable rating for migraine headaches associated with posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) is remanded. The Veteran contends that his headache condition warrants a compensable initial rating. A September 2020 rating decision granted service connection for headaches as a residual of his service connected TBI with an effective date of June 20, 2012, the date the Veteran's claim for a TBI was received. Pursuant to the Board's December 2019 remand, the Veteran was afforded the opportunity to undergo another VA headache examination in September 2020. The examiner stated that the Veteran's migraine condition has progressed/worsened since its onset. The examiner stated that the Veteran does not have characteristic prostrating attacks of migraine/non-migraine headache pain. However, in an October 2020 statement, the Veteran noted that his September 2020 headache examination did not provide an accurate description of his headache symptoms. Specifically, the Veteran stated that he has at least one prostrating migraine headache per week and he told the examiner this information. The Veteran requested that this information be reevaluated. Therefore, the Board finds that the Veteran should be afforded another VA headache examination to determine the current severity of his condition based on the accurate facts as relayed by the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected PTSD with TBI. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. The examiner should provide a retrospective opinion, if possible, as to the severity of the Veteran's TBI (as outlined in the VA TBI disability benefits questionnaire) prior to April 15, 2020. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected migraine headache condition. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.