Citation Nr: 21006597 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-03 983 DATE: February 4, 2021 ORDER Entitlement to service connection for migraine headaches is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current headaches were incurred during or as a result or any injury, event, or illness during active service. CONCLUSION OF LAW The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to August 1976 and July 1979 to March 1986, with subsequent service in the Idaho National Guard from March 1987 to May 1998. In June 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is associated with the claims file. In November 2019, the Board denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus and remanded the claim of entitlement to service connection for migraine headaches. The Veteran appealed the November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (JMR), the parties agreed that the portion of the November 2019 decision that denied service connection for bilateral hearing loss and tinnitus should be vacated and the issues remanded to the Board for further development. The Court granted the JMR and the hearing loss and tinnitus claims have returned to the Board for action consistent with the JMR. The August 2020 JMR and Court Order did not involve the headache claim that was remanded by the Board in November 2019. Instead, all development requested by the Board in November 2019 has been completed with respect to the headache claim and that claim returns to the Board for further consideration. 1. Entitlement to service connection for migraine headaches Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has asserted that he has headaches that are related to an in-service injury in which he fell during physical training with a rucksack on his back. During the June 2019 hearing, he testified that he went to sick call two times in approximately 1980 and was told that he extended the 5th vertebra in his neck. He stated that he was given ice packs but that he was not diagnosed with headaches at that time. He testified that he has continued to have headaches that come and go since that time and that he has self-medicated with aspirin and Tylenol he was prescribed for pain in other joints. See June 2019 Board hearing transcript, pp. 3-5. The Veteran’s service treatment records (STRs) reflect that, March 1979, he sought treatment for headaches in the bilateral temple area in conjunction with nausea and tightness in his chest that had been present since the previous day. He was diagnosed with viral syndrome and given medication. The STRs confirm that the Veteran was treated for an injury related to soreness in the back of the neck due to wearing a rucksack and other load bearing equipment in June 1982. The Veteran did not complain of headaches at that time. Instead, the assessment was trauma to the C-7 area of his neck, and he was given a profile of no duty wearing a rucksack for six days. See STRs dated June 1992. In June 1984, the Veteran sought treatment for pain in the low back and neck that began during a road march in May. He also reported having headaches at that time. Indeed, the assessment was mechanical low back pain and muscle tension headaches, for which he was given medication, physical therapy, and a profile of no running for five days. During physical therapy approximately 10 days later, he reported that he was asymptomatic and was discharged to a home therapy program. Subsequent STRs do not contain any further or additional complaints regarding headaches. In fact, the Veteran denied having or having had frequent or severe headaches during the January 1986 pre-separation examination. At that time, he also denied having any sequelae or problems related to the previous diagnosis of mechanical back pain secondary to rucksack physical training. See STRs dated June 1984 and January 1986 report of medical history. As noted, the Veteran testified that he has continued to have headaches since the in-service neck injury, and he is competent to report the symptoms he experienced during and since service. However, the Veteran’s denial of having or having had frequent or severe headaches during the January 1986 examination weighs against any assertion that his headaches continued during his active service, even on an intermittent basis. Indeed, the Board finds that, even if he was self-medicating his headaches, it is likely the Veteran would have reported having continued, intermittent headaches during the January 1986 examination or thereafter. In this regard, the Board finds probative that the Veteran also denied having or having had frequent or severe headaches during examinations conducted throughout his National Guard service, as reflected in reports of medical history dated February 1988, June 1992, and February 1998. See reports of medical history dated February 1988, June 1992, and February 1998. The Board notes the claims file contains VA treatment records dated as early as November 1998 and there is no complaint of or treatment for headaches of record until September 2019 when he reported having occasional twinge headaches associated with his vision problems. He was diagnosed with monocular migraine with aura, but he otherwise denied having headaches on numerous occasions. See VA treatment records dated December 2017, March and September 2018, March 2019, and September 2019. The Board finds this evidence weighs against any assertion of continued headaches after service. The Veteran was afforded a VA examination in January 2020, during which he was diagnosed with migraine headaches. After examining the Veteran and reviewing the claims file, the VA examiner opined that the Veteran’s current headaches are less likely than not incurred in or caused by an in-service injury, event, or illness. In making this determination, the VA examiner noted the in-service neck injury in June 1982, as well as the notation of headaches with neck and low back pain in June 1984; however, the examiner also noted there was no further mention of neck issues or headaches in the STRs or in the VA treatment records until September 2019. Based on this evidence, the examiner stated there was no evidence in the record to support a favorable opinion that the Veteran’s current headaches are related to any event or condition in service or that they began in service. In evaluating this claim, the Board places great probative weight on the opinion provided by the January 2020 VA examiner, as the opinion had a clear conclusion and supporting data, as well as a reasoned medical explanation connecting the two. Indeed, the examiner based his opinion on the lack of evidence showing continued headaches following the June 1982 or June 1984 treatment and the lack of evidence showing complaints of headaches for many years after service. While the VA examiner did not note the Veteran’s subjective reports of continued headaches after service, the Board notes that the Veteran’s assertions in this regard are outweighed by the contemporaneous medical evidence of record which does not contain any report of frequent, severe, or continued headaches during the remainder of his active service, National Guard service, or until he filed his claim in January 2014. Therefore, the Board finds the January 2020 VA opinion is the most competent, credible, and probative evidence of record with respect to whether the Veteran’s current migraine headaches are related to his periods of active service. Indeed, the VA opinion is based on the competent and probative evidence of record and there is no other medical evidence or opinion of record that attributes the Veteran’s current headaches to his active service. The Board has considered the Veteran’s statements regarding the onset and continued nature of his headaches since service and the Board, again, notes that he is competent to report the symptoms he has experienced. However, the Veteran is not competent to attribute his headaches to any instance in service, as he has not demonstrated the medical expertise to do so. In this context, the Board notes that, while headaches are capable of lay observation, establishing headaches as a chronic disability, as opposed to a symptom of another disability, requires medical evidence, testing, and expertise. As discussed above, the Veteran has frequently denied having headaches following the initial report of headaches during active service and to treatment providers during his National Guard service and the appeal period. Further a medical professional has examined the Veteran and reviewed the evidence and opined that an etiologic relationship between the current headaches and any event or condition in service is not likely. Therefore, both the weight of the lay and medical evidence is against the grant of service connection in this case. Accordingly, as the preponderance of the evidence is against the grant of service connection in this case, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. As noted, in the August 2020 JMR, the parties agreed that further development was needed for the claims of entitlement to service connection for bilateral hearing loss and tinnitus. With respect to the hearing loss claim, the JMR noted that the September 2014 VA examination (on which the previous denial was based) was inadequate because the examiner compared the results of the Veteran’s earliest audiogram with the audiogram conducted at separation from service, without addressing the other audiograms of record. Because the examination and opinion were not based on the Veteran’s entire service medical history, the JMR directed that the Veteran be afforded a new examination and opinion that includes review of the entire service record. The JMR also noted that VA did not fulfill its duty to assist the Veteran in obtaining VA medical records, as the Veteran testified that he received treatment for hearing loss during the mid-1990s at the Boise VA Medical Center (VAMC) but records of such treatment were associated with the claims file and the Board did not address the existence of such records. The JMR directed that VA attempt to retrieve records of the reported treatment, determine that the records do not exist, or determine that further efforts to obtain the records are futile. With respect to the tinnitus claim, the JMR directed that the Board should address whether the Veteran is entitled to service connection for tinnitus on a secondary basis, as the tinnitus claim is inextricably intertwined with the hearing loss claim given the VA examiner’s statement that tinnitus is a likely side effect of bilateral hearing loss. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s treatment records from the Boise VA Medical center from 1990 to November 1998. All efforts to obtain such records should be documented in the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a new VA examination to determine the nature and etiology of his bilateral hearing loss disability. After review of the record, the examiner is requested to provide an opinion as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the current hearing loss was incurred in or as a result of his military service, including his military noise exposure? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the current tinnitus (1) was caused or (b) is aggravated by his bilateral hearing loss? Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability In answering the foregoing, the examiner must consider and address the service treatment records, including each audiogram conducted throughout his active service, e.g., audiograms conducted in March 1976, September 1977, March 1978, October 1980, and January 1986. The examiner must also consider the post-service treatment records, identify any post-service noise exposure, and discuss the relevance of such. The examiner should also consider the Veteran’s lay reports of the nature, onset, and progression of his hearing loss and tinnitus disabilities. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A well-reasoned rationale must be provided in support of any opinion offered. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.