Citation Nr: 21032511 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-60 325 DATE: May 27, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran is presumed sound at service entrance. 2. The Veteran's tinnitus had its onset in service. 3. The Veteran's migraine headaches had their initial onset during active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1111, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1970 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus, which he asserts began during service and has been recurrent since that time due to working on the flight lines during service. See May 2021 Board Hearing Transcript. Here, the November 2015 and September 2017 VA examination reports reflect a diagnosis of tinnitus. Thus, the first element of service connection is established. Regarding the second element of service connection, while the Veteran's service treatment records are silent for tinnitus complaints, the Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his service while working on flight lines (see 38 U.S.C. § 1154(a)), and as detailed below, his report of an in-service incurrence of tinnitus is credible. Thus, the second element is also met. Regarding nexus, the Board has conceded acoustic trauma due to him working on flight lines as noted above. Additionally, he has competently and credibly reported that he first experienced tinnitus during service as a result and continued to experience tinnitus since that time. See May 2021 Board Hearing Transcript. There is no adequate competent evidence to the contrary. The Board acknowledges the November 2015 and September 2017 VA examiners rendered opinions unfavorable to the Veteran's tinnitus claim. However, neither examiner addressed his conceded exposure to acoustic trauma while working on flight lines during service, and the Veteran has since clarified during his Board hearing that he first noticed ringing in his ears during active duty. Critically, tinnitus is capable of lay observation, and the Board finds the Veteran's report of an in-service onset of tinnitus credible. Thus, both negative VA opinions are inadequate and of no probative value for failure to consider the nature of the Veteran's service and his clarifying hearing testimony. Accordingly, element three of service connection is met, and service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. Entitlement to service connection for migraine headaches is granted. I. Presumption of Soundness When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, migraine headaches were not noted on the Veteran's August 1970 entrance examination. The examination report reflected a normal head evaluation. Therefore, the presumption of soundness is for application and to rebut this presumption VA must demonstrate that there is clear and unmistakable evidence that the disability both existed prior to enlistment into service and was not aggravated by such service. Here, the Board finds that the onerous burden is not established, and such clear and unmistakable evidence does not exist as to a preexisting condition, thus the Board need not address the aggravation prong. On the Veteran's Report of Medical History at service entry, he noted he had prior frequent or severe headaches;" however, he did not report the presence of migraine headaches, specifically due to light, and evidence dated prior to the August 1970 entrance examination is negative for anything findings of the same. See August 1970 service treatment record (STR). During the February 2018 examination, the VA examiner applied the wrong legal standard (at least as likely as not) when opining that the Veteran's migraine headaches preexisted service and were not aggravated thereby. Thus, this opinion is inadequate and of no probative value. During a May 2019 Decision Review Officer (DRO) and the May 2021 Board hearing, the Veteran competently testified that he did not experience headaches due to light or sensitivity due to light prior to service and that debilitating headaches of this nature began during service, and the Board finds him competent in this regard to differentiate between types of headaches. Accordingly, given the normal enlistment examination report, the Veteran's STRs and statements, and the February 2018 VA examination report, the Board finds that when resolving reasonable doubt in the Veteran's favor, the presumption of soundness cannot be rebutted by clear and unmistakable evidence, and the claim becomes one for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claim is converted into a normal claim for service connection). II. Service Connection Here, the Veteran is competent to report current migraine-type headaches, and a May 2017 VA examination report confirms a diagnosis of migraine headaches. See May 2017 VA examination report. Additionally, his service treatment records (STRs) document that he was medevaced from Thailand to Japan for treatment of photophobia in July-August 1972, for which he is service-connected. In this regard, he has competently and credibly reported that he first experienced debilitating migraine headaches during service following his photophobia incident and that his migraine headaches, which are triggered by light, have been continuous ever since. See May 2017 and February 2018 VA examination reports, August 2017 VA Form 21-4138, August 2017 VA treatment record, May 2019 DRO Hearing Transcript, and May 2021 Board Hearing Transcript. Thus, elements one and two of service connection are met. As the discussion below is favorable regarding direct service connection, no other theory of entitlement will be addressed. Regarding the final element, nexus, the Board finds that the Veteran is competent to determine that his in-service migraine headaches due to photophobia are different than any regular pre-service headaches he experienced and are of the same nature as his post-service migraine headaches. Thus, he is competent to establish a nexus between his current migraine headaches and service, and his statements in this regard are supported by his STRs and other information of record, including the February 2018 VA examiner's statement that "it is highly likely that bright lights have been a trigger for migraines," which links the Veteran's in-service photophobia to migraine headaches. Moreover, there is no adequate competent evidence to the contrary. In this regard, the May 2017 VA examiner indicated she could not opine on the Veteran's migraine headaches being due to photophobia without resorting to mere speculation; thus, the opinion is of no probative value. Accordingly, service connection for migraine headaches is established. 38 C.F.R. § 3.303. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. Recently during his May 2021 Board hearing, the Veteran testified that his hearing loss has worsened since he was last examined in 2017. As such, an updated VA examination is needed, as the September 2017 VA examination may no longer be reflective of the Veteran's current level or nature of his disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination with a different examiner than the November 2015 and September 2017 VA examiners to determine the current nature and severity of his bilateral hearing loss. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail. (a) Determine whether the Veteran has hearing loss in either ear for VA purposes. (b) If the Veteran has hearing loss in one or both ears for VA purposes, then the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to service. In addressing this question, the examiner must discuss: (i) the Veteran's conceded in-service noise injury due to working on flight lines (see May 2021 Board Hearing Transcript); (ii) whether the Veteran's conceded in-service noise injury resulted in delayed-onset hearing loss, and if you rely on the IOM study, please address the 2006 IOM statement that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed;" and (iii) the Veteran's assertions, which you are to assume are true, that his current bilateral hearing loss had its onset during his active duty service and continued from his active duty service to the present. See May 2021 Board Hearing Transcript. The examiner must assume this statement as true, even despite the absence of "objective documentation." (iv) Please state whether a nexus between the Veteran's bilateral hearing loss and service is medically consistent with the symptomatology reported by the Veteran in sub-part (b)(iii) above and note that the Veteran is service-connected for tinnitus. Otherwise, the opinion will be returned as inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.