Citation Nr: 21039753 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-50 415A DATE: July 1, 2021 ORDER Entitlement to service connection for a headache disability other than sinusitis is denied. REMANDED Entitlement to a compensable evaluation for a left ear hearing loss disability prior to November 4, 2020 is remanded. Entitlement to a compensable evaluation for a bilateral hearing loss disability from November 4, 2020 is remanded. FINDING OF FACT The Veteran's headaches are a symptom of his service-connected sinusitis. CONCLUSION OF LAW The criteria for entitlement to service connection for a headache disability other than sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1969 and May 1970 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in September 2020 for further development. Since the Board's remand, the issues of entitlement to sinusitis, a lumbar spine disability and a right ear hearing loss disability have been granted. See December 2020 rating decisions. As those decisions represent a full grant of the benefits sought on appeal, those issues are no longer before the Board. Due to the grants of service connection for sinusitis and a right ear hearing loss disability, the issues that remain before the Board have been recharacterized accordingly. Entitlement to service connection for a headache disability other than sinusitis. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As an initial matter, the Board notes that remand for a VA examination is unnecessary. VA must provide a medical examination or opinion when the record contains, amongst other things, competent evidence of a current disability or persistent or recurrent symptoms of a disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not submitted evidence, including lay evidence, that he has a headache disability that is separate from his service-connected sinusitis. Because there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, remand for a VA examination is unnecessary. As discussed above, there is no evidence, including lay evidence, that the Veteran has a headache disability other than his service-connected sinusitis. Indeed, the evidence reflects his headaches are a symptom of his sinusitis. See, e.g., December 2014 VA examination. As the preponderance of the evidence reflects that the Veteran's headaches are a symptom of his sinusitis and he does not have a headache disability other than sinusitis, service connection is not warranted. REASONS FOR REMAND Entitlement to a compensable evaluation for a left ear hearing loss disability prior to November 4, 2020; entitlement to a compensable evaluation for a bilateral hearing loss disability from November 4, 2020. VA treatment records reflect that the Veteran underwent an audiological examination in January 2020 by a VA treating audiologist. Clarification is necessary to determine whether speech recognition testing was using the Maryland CNC test; if so, then the audiogram results that are noted to be under the "Tools" menu are needed. See 38 C.F.R. § 4.85. Thus, remand is necessary. See Savage v. Shinseki, 24 Vet. App. 259, 136, n. 7 (2011) (discussing VA's duty to assist in obtaining clarification of VA treatment records). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must request clarification from the Veteran's treating VA audiologist from January 2020 to determine whether the Maryland CNC test was used for speech recognition. It is not sufficient to merely obtain VA treatment records. All efforts to obtain clarification should be thoroughly documented. If the Maryland CNC test was used in January 2020 VA treatment records, then the AOJ should obtain the Audiogram results under the Tools menu from January 2020. 2. The AOJ should obtain copies of VA treatment records from September 2020 to the present. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.