Citation Nr: 21071005 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-36 270 DATE: November 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an initial rating of 50 percent for migraine headaches prior to November 26, 2019 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran experienced continuity of symptoms related to bilateral hearing loss, namely difficulty hearing, since being exposed to loud noise in service. 2. Resolving all reasonable doubt in the Veteran's favor, for the entire period on appeal, his migraine headaches more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for bilateral hearing loss has been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for the maximum 50 percent rating for migraine headaches prior to November 26, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1973 until his honorable discharge in February 1984, with additional service in the United States Coast Guard Reserve. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from May 2014 and December 2014 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO). In a May 2014 rating decision, entitlement to service connection for bilateral hearing loss was denied. In a December 2014 rating decision, the RO granted service connection for a headache disability with a noncompensable (zero percent) evaluation, effective August 6, 2013. In an August 2020 rating decision, the RO granted entitlement to an earlier effective date for service connection for the Veteran's headache disability because a clear and unmistakable error was made; therefore, a noncompensable evaluation was assigned effective August 19, 2011. In a December 2020 rating decision, the RO granted a 50 percent evaluation effective November 26, 2019. The issue remains in appellate status, as the maximum schedular rating has not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2019, the RO also denied entitlement to TDIU. The Board finds there has been substantial compliance with its September 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for bilateral hearing loss is granted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Generally, to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For certain chronic diseases manifested to a compensable degree within a specified number of years after service, there is a rebuttable presumption of service connection if the veteran served for 80 days or more during a period of war of after December 31, 1946. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be established for these certain chronic diseases if they manifested during service and subsequently, unless attributable to an intercurrent cause, or if they produced continuity of symptomatology ever since service or the presumptive period. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran contends his bilateral hearing loss is the result of exposure to acoustic trauma during active duty service. The Veteran's Air Force Specialty Codes (AFSC) include 43151F, Tactical Aircraft Maintenance; 51150, Computer Operator; and 51151, Computer Programming Specialist. See DD Form 214 Certification of Release or Discharge from Active Duty. On his initial application for service connection, the Veteran asserted his bilateral hearing loss occurred during his time in the Air Force working on C-130 aircraft and engines. See August 2013 VA Form 21-4138. The Veteran is already service-connected for tinnitus due to exposure to excessive noise exposure (acoustic trauma) during service. In his October 2013 correspondence, he stated testing of the C-130 aircraft engines was done in an extremely noisy environment and this was often completed without the use of hearing protection. In his July 2014 Notice of Disagreement, the Veteran stated his hearing loss has worsened since his July 1973 examination. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies: 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tet are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board observes the Agency of Original Jurisdiction (AOJ) made the following favorable findings: (1) the Veteran has been diagnosed with a bilateral hearing loss disability and (2) the Veteran was exposed to hazardous noise during military service. See May 2016 Statement of the Case and December 2020 Supplemental Statement of the Case. These are favorable findings that will not be readjudicated by the Board. Thus, the question before the Board is whether the Veteran's bilateral hearing loss was incurred in or related to his military service, to include presumed in-service noise exposure. For chronic diseases, absent a medical nexus opinion linking the Veteran's current disability relating to his active service, the question is whether the Veteran has a current disability that is a chronic disease and manifested to a compensable degree during the applicable presumptive period, manifested during service, or produced continuity of symptomatology ever since service or this period. Bilateral hearing loss is considered a chronic disease, which includes sensorineural hearing loss, under 38 C.F.R. § 3.309 (a). The Veteran's service treatment records (STRs) show the Veteran had his hearing tested in July 1973, at the beginning of his active duty service; in October1973; and in February 1984, at his separation from active duty service. The pure tone thresholds during these examinations do not rise to the level of a hearing disability for VA purposes, however, they do show some degree of hearing loss. Additionally, the Veteran had his hearing tested in July 1987, at the beginning of his Coast Guard Reserve service; in October 1991; and in January and August 2000. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. The Veteran was afforded a VA audiological examination in October 2013. The examiner diagnosed mild sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. No nexus opinion was provided. In May 2014, another VA examiner reviewed the file and opined that "it is less likely than not" that the Veteran's hearing loss is due to military service. She noted normal hearing at active duty entrance and separation. She also noted that hearing thresholds were the same or slightly improved at separation. No testing was performed in conjunction with this medical opinion. Pursuant to the December 2019 remand, VA obtained a Veterans Evaluation Services (VES) audiological examination in December 2019. The Veteran reported in-service military noise exposure to C-130 jet engines and other aircraft noise; as a computer operator he worked in 'server rooms' with noise. He denied civilian and recreational noise exposure. The examiner diagnosed bilateral sensorineural hearing loss and opined the Veteran's hearing loss is at least as likely as not caused by or a result of military service. As rationale, the examiner stated: Due to missing entrance or other audiograms during service, I was unable to verify a threshold shift in the Veteran's medical records that was greater than normal measurement variability. The DD Form 214 in the Veteran's file fives the service dates of 1973 through 1984, however, there is an audio exam completed in 2000 which reveals a hearing loss in the left ear. There is no evidence to confirm or deny a significant shift in hearing thresholds or auditory damage. In the absence of proof otherwise, the opinion will favor the Veteran. In an August 2020 addendum opinion, the December 2019 VES examiner reviewed the active duty entrance and separation examinations and opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of an event in military service because the exams revealed normal hearing in both ears. No additional rationale was provided It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds the May 2014 and August 2020 opinions to be inadequate. Specifically, the examiners did not address the Veteran's competent and credible statements regarding in-service onset and continuity of symptoms since service separation. Second, a negative etiological opinion based solely upon the lack of evidence of complaints or treatment for symptoms in a Veteran's STRs is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, as noted above, entitlement to service connection for hearing loss does not require the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. As the May 2014 and August 2020 medical opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. The Board notes that the Veteran's July 1973 active duty entrance examination and the July 1987 Reserve entrance examination identified altered hearing, and an October 1991 examination indicates left ear hearing loss for VA purposes. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has competently and credibly indicated the onset of bilateral hearing loss during his military service, coincident with his duties as a Tactical Aircraft Maintenance [Technician]. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. While the Veteran is not competent to determine whether his hearing loss after service reached a level of 10 percent, given the Veteran's noise exposure during service, and his consistency in statements since service, the Board resolves reasonable doubt in his favor. Therefore, as the VA examinations afforded to the Veteran for this claim are of limited probative value, the Board finds that the evidence of record, considering the Veteran's credible lay statements of continued symptomatology, are in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss is granted based upon continuity of symptomatology. 2. Entitlement to a compensable rating for migraines prior to November 26, 2019 Increased Rating Disability ratings are determined by the application of the facts presented in the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Analysis The Veteran seeks a higher rating for his service-connected headache disability and contends the 50 percent rating assigned should be effective earlier than November 26, 2019. See October 2015 Notice of Disagreement. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum schedular 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). "Prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1534 (32nd ed. 2012). The term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The Court has held that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id. at 446; see also 38 C.F.R. § 4.16. Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluation the severity of his disability. Id. Relevant to this appeal, the criteria for rating migraines are "successive." Johnson v. Wilkie, 30 Vet. App. 245 (2018). "Successive" criteria exist where the evaluation for each higher disability rating includes the criteria for each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Unlike most rating codes, 38 C.F.R. § 4.124a Diagnostic Code 8100 for migraines is successive and cumulative, meaning that all the criteria for a higher rating must be met for the higher rating to be warranted. Johnson, 30 Vet. App. at 252. Turning to the evidence of record, in October 2013, the Veteran submitted a "Traumatic Brain Injury (TBI) Signs and Symptoms Questionnaire." The Veteran reported daily tension headaches, lasting more than four hours a day, at a level of severity described as "severe." The Veteran was afforded a VA Headaches examination in October 2013. The examiner diagnosed transient post traumatic headaches and noted symptoms of headache pain on both sides of the head and sensitivity to light. Typical head pain was noted to be daily and was documented to be located on both sides of the head. Prostrating attacks of non-migraine headache pain were found to occur less than once every 2 months. His treatment plan included taking Tylenol and Motrin. Regarding functional impact, the examiner stated the Veteran's headache disability affected his ability to work. The Veteran reported losing focus on the job. The Veteran was afforded a VA Headaches examination in November 2014. During the examination, the Veteran reported his headaches had worsened; they are more intense and can occur 20 to 25 days out of a 30-day month. His treatment plan included taking Tylenol. The examiner diagnosed hypertensive headache and noted symptoms of constant headache pain, pulsating or throbbing head pain on both sides of the head, worsening with physical activity with associated symptoms of sensitivity to light and moody/depressed/anxious. Typical head pain was noted to last less than one day, located on both sides of the head. The examiner stated the Veteran did not have characteristic prostrating attacks of migraine and non-migraine headache pain. Regarding functional impact, the examiner stated the Veteran's headache disability affects his ability to work. The Veteran reported, "he gets "overly excited", anxious, and might "lose control" during a headache. On his October 2016 VA Form 9, the Veteran stated he experienced chronic migraines. He stated the migraines can last from one day, to several weeks. He described his migraine/headache pain as constant and throbbing, located on both sides of the head with associated symptoms of nausea and sensitivity to light. He stated, "I feel like my head is exploding." In December 2019, the Veteran submitted a November 2019 Headaches Disability Benefits Questionnaire (DBQ) completed and signed by Dr. H.M. His treatment plan included taking Divalproex (nightly) and Propranolol (daily). Dr. H.M. diagnosed migraine including migraine variants, tension type headaches, post traumatic headaches, and chronic daily headaches. Dr. H.M. noted symptoms of headache pain, pulsating or throbbing head pain on both sides of the head with associated symptoms of nausea, vomiting, sensitivity to light and sound, and tinnitus. Typical head pain was noted to be constant, lasting more than 2 days, located on both sides of the head. Prostrating attacks of non-migraine headache pain were noted to occur more frequently than once per month. The Veteran also had very frequent prostrating and prolonged attacks of non-migraine headache pain. Regarding functional impact, the examiner stated the Veteran's headaches affects his ability to work, stating a person with chronic daily headaches is unable to work. In accordance with the September 2019 remand directives, the Veteran was afforded a VES Headaches examination in December 2019. The Veteran reported his headaches had worsened with symptoms of nausea, vomiting, sensitivity to light and sound. His treatment plan included taking Divalproex and Propranolol. The examiner diagnosed migraine with migraine variants and noted symptoms of chronic headache pain with associated symptoms of nausea, vomiting, sensitivity to light and sound. Typical head pain was noted to occur daily; with medication on board goes away in a few hours, and without medication can last to the next day. Prostrating attacks of migraine and non-migraine head pain were found to occur more frequently than once per month and were productive of severe economic inadaptability. Regarding functional impact, the examiner stated the Veteran's headache condition impacts his ability to work. The Veteran reported his headaches are so severe, and occur two to three times a week, causing irritability and poor concentration. The examiner remarked, "constant headaches is not a diagnosis; it is a symptom of migraines. Migraines are a recurring type of headache causing moderate to severe pain that is throbbing or pulsing. Symptoms are worsening." Based on the examination reports and lay evidence, the Veteran's headaches more nearly approximate the criteria for a 50 percent rating prior to November 26, 2019. While the Veteran was awarded the increased rating of 50 percent as of the date of the November 2019 private provider DBQ the Board observes that effective dates should not be mechanically assigned based solely on the date of the examination but should include consideration of all the facts to determine the date that the increase in the disability was ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Veteran's treatment records reflect consistent and frequent reporting of severe headache pains that are completely prostrating, occurring on an average of more than two to three times per month. The Veteran has also given credible reports of missing time from work due to the prostrating migraine attacks. In addition, the evidence suggests that the headache pains have continued to increase in severity over the years. As previously stated, the Veteran has described very frequent, long-lasting, and severe migraine headaches. His headaches have resulted in nausea, vomiting, and sensitivity to light and sound. The Veteran has been prescribed various medications since service, but it appears those medications do very little to prevent the headache pains. The record also shows the Veteran's migraine episodes to be prolonged and productive of severe inadaptability. As noted, the criteria for a 50 percent rating does not required migraine headaches that actually produce severe economic inadaptability, but rather migraine headaches that are producing severe economic inadaptability. See Pierce, 18 Vet. App. at 446. Here, the Veteran's migraine headaches have shown to be significant impediments to his employment, considering that he has reporting missing days from work due to prostrating headaches. Further, the October 2013 VA and November 2014 VA examiners noted the Veteran's chronic migraines significantly impact the Veteran's ability to work, and Dr. H.M. and the December 2019 VES examiner noted the Veteran's prostrating and prolonged attacks significantly impact his ability to work. Thus, the Board finds the Veteran's headache disability symptoms are capable of producing severe economic inadaptability. For the foregoing reasons, the Board concludes that the Veteran's disability picture and symptomatology, as shown by the medical and lay evidence, meet the criteria for a 50 percent disability rating prior to November 2019. The Board notes a 50 percent rating is the maximum schedular rating warranted for migraines under Diagnostic Code 8100. The Veteran' symptoms of nausea, vomiting, and sensitivity to light and sound are contemplated by the 50 percent rating. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's headaches are not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. As such, a rating in excess of 50 percent is not warranted. REASONS FOR REMAND Entitlement to TDIU is remanded. The matter of entitlement to a TDIU was initially raised by the Agency of Original Jurisdiction (AOJ) in the August 2020 rating decision. In a September 2020 correspondence, the AOJ mailed the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to complete and return to VA. However, to date, VA has not received a completed copy of this form from the Veteran (leaving the record incomplete and insufficient to decide the claim). On remand, the Veteran should be afforded another opportunity to complete the VA Form 21-8940. The matters are REMANDED for the following action: Provide the Veteran with notice of the requirements to substantiate a claim for a TDIU, including a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and describe the information needed to support a claim for TDIU. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, Associate 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.