Citation Nr: 21040860 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-37 778 DATE: July 7, 2021 REMANDED Entitlement to a disability rating higher than 50 percent for bilateral hearing loss is remanded. Entitlement to service connection for migraine headaches, to include as secondary to service-connected hearing loss and tinnitus, is remanded. Entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss and tinnitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been added to the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to a disability rating higher than 50 percent for bilateral hearing loss is remanded. The Veteran last underwent an audiology examination in April 2018. Before the Board, he testified that his hearing has worsened since then. Because the severity of the Veteran's hearing loss is not known, the Board will remand for another examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the appellant complained of increased hearing loss . . . after his last audiology examination, VA should . . . schedule[] the appellant for another examination."). Remand is further warranted to obtain missing VA medical records. VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). As part of the duty to assist, VA must, in appropriate cases, obtain "records of relevant medical treatment or examination of the claimant at Department health-care facilities." 38 U.S.C. § 5103A(c)(1)(B). Here, the Veteran underwent audiometric testing three times at his local VA outpatient clinic in 2015 ( March, May, and October). Each time, the audiologist noted that the "detailed results" of the testing were available in VA's Computer Patient Record System (CPRS). Unfortunately, these records are missing from the Veteran's claims file and are unavailable for review by the Board. On remand, the results should be obtained and associated with the claims file. See Lang v. Wilkie, 971 F.3d 1348, 1353-55 (Fed. Cir. 2020). 2. Entitlement to service connection for migraine headaches, to include as secondary to service-connected hearing loss and tinnitus, is remanded. The Veteran's service connection claim for migraine headaches must also be remanded for two reasons. First, the current headache examination is inadequate because the examiner did not address whether the Veteran's service-connected hearing loss aggravated his headaches. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). And second, the Veteran submitted a peer-reviewed medical journal article "indicat[ing]" his migraine headaches "may be associated" with his service-connected tinnitus. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As a result, the Board finds remand necessary to obtain an adequate secondary service connection medical opinion and address this new theory of entitlement. 3. Entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss and tinnitus, is remanded. In June 2016, the Veteran underwent an ear condition examination. There, the examiner diagnosed him with a peripheral vestibular disorderhearing impairment with vertigo. Despite this, he rendered a negative nexus opinion but did not address whether the Veteran's service-connected hearing loss or tinnitus aggravated his vertigo. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Two years later, the Veteran underwent another ear condition examination. There, the examiner appears to diagnose the Veteran with vertigo in the examination report. But elsewhere, he writes the opposite: "[u]nable to confirm a current chronic diagnosis." And that's not the only apparent contradiction. Later, he opined that the Veteran's service-connected hearing loss aggravated his vertigo beyond its natural progression. In the very next sentence, the examiner changes his mind and says that the Veteran's "[v]ertigo is a natural progression of the Veteran's documented hearing loss." Because the first examination is inadequate and the second examination contains conflicting information, the Veteran's claim is remanded to obtain another medical opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. This shall include the Veteran's March 18, 2015, May 23, 2015, and October 28, 2015 audiologic test results. The treatment records indicate that the results are in CPRS. 2. Then, schedule the Veteran for an examination to determine the current nature and severity of his service-connected hearing loss. The claims file should be made available to and reviewed by the examiner. 3. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's migraine headaches were (A) caused or (B) aggravated beyond its normal progression by his service-connected hearing loss or tinnitus. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability before aggravation by the service-connected disability. The examiner must address the Frontiers in Neurology medical journal article ("Tinnitus Patients with Comorbid Headaches") in the opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo was (A) caused or (B) aggravated beyond its normal progression by his service-connected hearing loss or tinnitus. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability before aggravation by the service-connected disability. If vertigo (or some other identifiable disease) is not diagnosed, the examiner should describe the Veteran's symptoms and provide an opinion on whether those symptoms cause functional impairment of his earning capacity. If so, the examiner must provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms were (A) caused or (B) aggravated beyond its normal progression by his service-connected hearing loss or tinnitus. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.