Citation Nr: 21074017 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-61 445 DATE: December 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been 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 August 1974 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a May 2021 virtual Board hearing. A transcript of the hearing has been associated with the file. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. He contends that his tinnitus began shortly after sustaining a facial injury during service in 1975. See VA Form 9, December 2016. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In this case, the Board finds that the Veteran has a current diagnosis of tinnitus. See Hearing Testimony, May 2021. As tinnitus can be identified through lay observations alone, the Veteran has offered competent and credible descriptions of experiencing tinnitus during the pendency of his claim. Id. During his May 2021 virtual Board hearing, the Veteran testified that his tinnitus began shortly after he was hit in the face with a tire during service. See Hearing Transcript, Page 7. He testified the ringing has "never gone away. Its 24/7." See Hearing Transcript, Page 7. During his July 2016 VA examination provided in conjunction with his tinnitus claim, the Veteran reported constant tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to service. For rationale, the examiner noted there was no objective evidence that the Veteran's tinnitus began during a period of military service, or a result of any injuries sustained during service, including being hit in the face with a tire. The Board notes the negative nexus opinion provided by the July 2016 VA examiner. However, this opinion does not adequately consider the Veteran's lay reports of tinnitus as a result of service. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2014); 38 C.F.R. § 3.303(a); Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds the Veteran's report of tinnitus occurring during and since service to be sufficiently credible to support the claim and to support a current diagnosis of tinnitus. See Charles, 16 Vet. App. at 374. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for migraines is remanded. The Veteran contends that service connection for migraine headaches is warranted as they manifested after an in-service injury. A VA examination was afforded to the Veteran in August 2016. A 2007 diagnosis of tension headaches was noted. The examiner opined it was less likely than not that the Veteran's current headache pattern began in service, to include being caused by the facial trauma that occurred in service. For rationale, the examiner noted that although the Veteran's history was credible, it remains vague regarding the onset of the current headache pattern and "does not definitely relate back to the service injury documented." See VA Examination, August 2016. During the May 2021 virtual Board hearing, the Veteran testified he had an upcoming appointment with his primary care provider to discuss treatment for his headache condition. The Board will remand for the agency of original jurisdiction to make appropriate efforts to obtain these recent outstanding treatment records. In addition, the Board finds that the Veteran should be afforded a new VA examination. At the May 2021 virtual Board hearing, the Veteran testified that he continues to suffer from headaches, approximately 3-4 times a week. See Hearing Transcript, Page 9. The Veteran is competent to describe his symptoms such as pain. Based on the ongoing report of headaches, and as the most recent examination of record is from 2016, a new examination is needed to evaluate the nature and etiology of the Veteran's headaches. His lay testimony regarding the continuity of his symptoms should therefore be addressed upon remand. The matter is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA or private) from whom he has received treatment for his headaches, specifically to include medical treatment records from his private primary care physician and complete and return an appropriate authorization form for each treatment provider identified (if any). After obtaining the completed release forms, request all identified pertinent medical records (if any). 2. Schedule the Veteran for an examination to determine the nature and etiology of his headaches. The examiner must review the entire claims file, including a copy of this Remand. The examiner is asked to provide a response to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headache condition is related to service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headache condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The examiner is advised that the absence of evidence of treatment for headaches in the Veteran's service treatment records cannot serve as the sole basis for a negative opinion. All opinions expressed must be accompanied by a complete rationale. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.