Citation Nr: 21068097 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-01 625 DATE: November 9, 2021 ORDER Service connection for migraine headaches is granted. Service connection for a left ear condition is denied. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran suffered an in-service head injury in August 1975 and has experienced headaches since that injury. 2. The evidence does not demonstrate a left ear disorder manifested by whistling, buzzing, and pressure in the left ear. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for a left ear condition have not been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from May 1975 to May 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2019 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In March 2021, the Board remanded this case for further development. The development requested having been completed, the case is now appropriate for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. The claimed left ear condition (the only service connection claim denied herein) is not among the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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). 1. Service connection for migraine headaches is granted. The Veteran contends and the evidence corroborates that he suffered a head injury in August 1975 when he dove from a cliff and hit his head on a rock. One of his brothers was with him at the time of the injury and submitted a statement in November 2015 in which he described the incident and stated that he and his friends carried the Veteran up the hill after the injury to wait for an ambulance; he said that the Veteran's head was "torn open." Another brother also submitted a statement in November 2015 in which he said that he helped care for the Veteran in the months following the head injury. A December 1975 service treatment record shows that the Veteran reported headaches, dizziness, and blackouts since his August 1975 head injury. He said that an x-ray was taken at the time of the injury at a civilian hospital. Records from the hospital are unavailable. The Veteran was diagnosed with headaches and told to take aspirin. Later in December 1975, the Veteran saw a neurologist for his headaches, stating that he had experienced them for the last 3 to 4 months. Neurological examination was intact, and the doctor stated they were most likely tension headaches. A January 1976 Memorandum from the Department of the Navy indicates the Veteran was anxious, depressed, and experiencing severe tension headaches due to stressful family situation at home. It was recommended that he be placed on a medical hold pending a neuropsychiatric consultation. In February 1976, it was noted that the Veteran had depression, anxiety, frequent headaches, and back pain; he stated his symptoms were interfering with his work performance. Following separation from service, in September 2002, the Veteran sought treatment for headaches from a head injury in 1975. He was diagnosed with migraine headaches in March 2003. In May 2008, he was diagnosed with chronic muscle contraction headaches with occasional migraines. VA treatment records show ongoing treatment and monitoring of the Veteran's headaches, and the Veteran consistently attributed his headaches to the 1975 injury, including in October 2010, when he stated that he had experienced headaches ever since the 1975 injury. At the August 2019 Board hearing, the Veteran testified that he had experienced headaches continuously since the 1975 injury. In an August 2019 letter, the Veteran's wife also stated that from the time she started dating the Veteran in 1976, he had experienced migraine headaches. The Board acknowledges that there is evidence against a grant of service connection for the claimed migraine headaches. A VA opinion was obtained in July 2021 in which the examiner opined that the current migraine headaches were not related to those experienced during active service, noting that there was a lack of documentation of treatment for headaches for many years following service separation and citing to medical literature that explained that migraines had genetic and hormonal etiological components. However, the examiner did not discuss the Veteran's 1975 head injury or the Veteran's competent and credible statements regarding experiencing headaches following the head injury. The Veteran is competent to describe his headaches and the Board also finds his statements that he has experienced headaches continuously since the in-service 1975 head injury to be credible. Moreover, his statements regarding continuous headaches since the injury are supported by the December 1975 service treatment record discussed above as well as his wife's statement. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for migraine headaches is warranted. 2. Service connection for a left ear condition is denied. The Veteran contends that he has a left ear condition, consisting of loud whistling, buzzing, and a feeling of pressure inside the ear, that was caused by the August 1975 injury described above. For the reasons discussed below, the Board finds that the weight of the evidence is against a finding of a current disability of the left ear for which service connection can be granted. Reviewing the most relevant evidence of record, service treatment records are silent for any reports, findings, signs, symptoms, treatment, or diagnosis of a left ear problem. The March 1976 separation examination report documents a retracted right tympanic membrane, but no left ear findings or reported problems. Following separation from service, post-service treatment records do not document any report or findings of a left ear condition. The Veteran was afforded a VA examination in August 2021. The examiner diagnosed sensorineural hearing loss in both ears, and noted that ipsilateral acoustic reflexes, contralateral acoustic reflexes, and acoustic immittance were normal in the left ear. The examiner opined that left ear hearing loss was not related to active service, reasoning that the Veteran had normal hearing from enlistment to separation. Acoustic damage was not supported since threshold shifts were not seen. The hearing loss had a delayed onset. The Veteran reported a decrease in hearing after an injury in service, but this was not seen in the audiometric data in the service treatment records. The examiner also opined that tinnitus was not related to active service. There were no reports or complaints of tinnitus in the service treatment records, and acoustic damage was not supported by the audiometric data in the service treatment records. With regard to the reported pressure in the ear, the 2021 VA examiner stated there was no middle ear pathology or any atypical results. Sensorineural hearing loss was not indicative of a head injury and was symmetric with his right ear; thus, the left ear hearing loss happened in conjunction with the right ear hearing loss. His hearing loss was indicative of presbycusis or civilian noise exposure. Tinnitus or noises in the ears occur with hearing loss often and is a symptom not a disease. Symptoms of loud whistling, buzzing, and feeling of pressure, while bothersome, would not decrease ability to function or maintain gainful employment. The Veteran did not report this keeping him from anything except sleeping at times, which is common with tinnitus. There were no indications of medical issues in the results besides traditional hearing loss. There were no links to an injury in service per the service treatment records, and the Veteran had typical sensorineural hearing loss. Therefore, the hearing loss was less likely than not caused by or a result of injury in the military. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a finding that there is a current left ear disability manifested by whistling, buzzing, and pressure in the ear. As noted above, service treatment records are negative for any signs or symptoms of a left ear condition, including the negative separation examination report. Moreover, none of the Veteran's treating or examining physicians have diagnosed a left ear condition other than sensorineural hearing loss and tinnitus, which was not claimed by the Veteran to be related to service and as discussed above, was determined not to be related to active service by the 2021 VA examiner. In this regard, the August 2021 VA examiner's opinion that there was no objective evidence of a left ear condition manifested by whistling, buzzing, and pressure in the ear is the most probative evidence of record; the examiner reviewed the claims file, examined and interviewed the Veteran, and cited to specific records in providing their opinion that there was no current disorder underlying the symptoms of whistling, buzzing, and pressure reported by the Veteran. In sum, the weight of the medical evidence demonstrates no current left ear condition. Regarding the Veteran's statements that he has symptoms of whistling, buzzing, and pressure in his left ear, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, while the Veteran is competent to provide his lay description of symptoms, he is not competent to diagnose or opine on medical etiology for complex medical questions requiring specific medical knowledge and training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). This case involves complex medical matters and requires specific findings and testing to confirm a diagnosis. The question of whether the Veteran has a current left ear disorder requires objective medical evidence, which, in this case, is absent. Without a showing of a current disability, the claim for service connection for a left ear condition must be denied. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim." Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. The Board also acknowledges Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. Apr. 3, 2018), in which the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where symptoms such as pain result in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection "simply by asserting subjective pain.... To establish the presence of a disability, the veteran will need to show that his pain reaches the level of functional impairment of earning capacity." In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. In this case, although the Veteran has reported symptoms of whistling, buzzing, and pressure in his left ear, the medical evidence of record shows no objective examination findings of functional limitations due to these symptoms, and the August 2021 VA examiner opined that such symptoms would not result in functional impairment. For the foregoing reasons, the Board finds that there is no current left ear condition. As such, the Board does not reach the additional question of the relationship between the claimed disability and active service, and the claim is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Pursuant to the Board's March 2021 remand, a VA opinion regarding the claimed TBI was obtained in July 2021. However, the Board finds the examination to be inadequate. The examiner appeared not to consider the Veteran's competent statements regarding symptoms of dizziness, blackouts, confusion, difficulty concentrating, and falls, merely stating that the medical records were negative for these symptoms. Moreover, the examiner's statement that the medical records did not show reports or treatment for these symptoms was incorrect. VA treatment records show blackouts and falls associated with migraines (see, e.g., VA treatment records dated April 28, 2015 and June 30, 2015). A remand is required to obtain a new VA opinion regarding whether the claimed symptoms of dizziness, blackouts, confusion, difficulty concentrating, and falls are related to the August 1975 head injury or to the now service-connected migraine headaches. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). 2. Entitlement to service connection for a neck disability is remanded. Also pursuant to the Board's March 2021 remand, a VA opinion was obtained in July 2021 regarding the claimed neck disability. The Board also finds this opinion to be inadequate. The examiner relied on lack of documentation of treatment for neck pain for many years following separation from service, seemingly discounting the Veteran's competent statements regarding experiencing neck pain ever since the August 1975 accident. Moreover, the examiner incorrectly stated that the service treatment records were negative for neck pain. A January 1976 treatment record shows that the Veteran reported neck pain following a motor vehicle accident. He followed up for neck pain in March 1976. The examiner also stated that the first complaints of neck pain were in 2006, when in fact, the Veteran was diagnosed with degenerative joint disease of the neck secondary to the August 1975 accident in September 2002. A remand is necessary to obtain a new VA opinion regarding whether the current neck disability is related to either the August 1975 diving accident or January 1976 car accident. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain a VA opinion (or examination if deemed necessary) from an appropriate specialist to address the nature and etiology of the Veteran's symptoms of dizziness, blackouts, confusion, difficulty concentrating, and falls. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's dizziness, blackouts, confusion, difficulty concentrating, and falls were incurred during or caused by active service, to include as a result of the August 1975 diving accident? The examiner must discuss and consider the Veteran's report of continuous symptoms of dizziness and blackouts since the in-service injury, the December 1975 service treatment record showing reports of dizziness and blackouts since approximately August 1975, and the 2015 VA treatment records showing blackouts and falls. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports regarding his symptoms, the examiner must provide a reason for doing so. (b.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's current blackouts and falls were caused or aggravated by the service-connected migraine headaches? The examiner must discuss and consider the 2015 VA treatment records showing several episodes of blackouts and falls attributed by the Veteran to his migraine headaches. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a VA opinion (or examination if deemed necessary) from an appropriate specialist to address the nature and etiology of the Veteran's neck disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's neck disability was incurred during or caused by active service, to include as a result of the August 1975 diving accident and/or the January 1976 motor vehicle accident? The examiner must discuss and consider the Veteran's report of continuous neck pain since the in-service injuries, the January 1976 service treatment record showing a report of neck pain following the motor vehicle accident, and the 2002 diagnosis of degenerative joint disease of the neck secondary to the August 1975 accident. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports regarding his symptoms, the examiner must provide a reason for doing so. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.