Citation Nr: 1736632	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-01 573	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.  

2. Entitlement to service connection for migraine headaches.

3. Entitlement to service connection for nausea, to include as due to migraine headaches.  


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Edelstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to July 1969 and as a reservist from July 1969 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  

The issues were previously before the Board in March 2015 at which time they were remanded for further development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran seeks entitlement to service connection for bilateral hearing loss due to exposure to loud noise in service.  The Veteran contends in a March 2010 statement that that his hearing loss is related to the Veteran's exposure to an artillery unit right next door to where he was stationed in Vietnam.  It is conceded that he was exposed to hazardous noise levels in service.  

The Board remanded the hearing loss claim to obtain a medical opinion that addressed the significance of inservice showing of left ear hearing loss for VA purposes on separation in July 1969.  Following the January 2016 VA audiological examination, that examiner noted that while the right ear may have impaired hearing, it does not meet the criteria to be considered a disability for VA purposes.  The examiner opined that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz in the right ear.  The examiner further opined that the Veteran's right hearing is not at least as likely as not caused by or a result of an event in military service.  The examiner, in his rationale stated that, "the only frequency with a threshold which is not normal, is 8kHz.  In examining other test results over the years, including his May 2011 hearing examination, there has never been any significant hearing loss in this ear."   

The examiner went on to note that that there is a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear.  The examiner opined that the Veteran's left hearing loss was at least as likely as not caused by or a result of an event in military service.  In his rationale, the examiner stated that in the Veteran's separation exam in July 1969, the results revealed significant hearing loss.  The examiner further stated that the hearing loss did not exist prior to service.  

The Board finds that an addendum opinion is required for clarification regarding the "permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear.  The Board is unclear to the examiner's statement regarding the "reference threshold," as in its "reference" to what specifically.  Further, that examiner offered a positive opinion relating the Veteran's left ear hearing loss to service, but the testing did not show left ear hearing loss that meets the criteria to be considered impaired hearing for compensation purposes.  

As for headaches and nausea claim, the Veteran testified under oath at the Board hearing that shortly after discharge from service, he began seeking treatment for severe headaches and associated nausea.  On his October 1965 Report of Medical History, the Veteran answered "yes" to a question about headaches and the examiner noted the headache frequency, but there was no pertinent defect or diagnosis noted on the contemporaneous medical examination.  

It was contemplated that the opinion obtained on remand would provide information to decide whether the presumption of soundness had been rebutted.  The January 2016 VA examiner did not consider the Veteran's report that he sought treatment for headaches shortly after separation from active duty, including while he was on Reserve duty.  The Veteran responded to requests for information regarding that treatment and noted that he was told the records were unavailable because the providers had either stopped practicing or purged records from that time period.  Further, the examiner did not consider the appropriate standard (clear and unmistakable evidence; it is undebatable) as noted in the remand request.  Thus, an addendum opinion is necessary.

The claim of service connection for nausea is inextricably intertwined with the headache claim and must be remanded also. 

Accordingly, the case is REMANDED for the following action:

1. Request an addendum opinion from the VA examiner who conducted January 2016 audiological examination. The electronic record and a copy of this Remand must be made available to the examiner.  If that examiner is unavailable or it is otherwise determined that the opinion cannot be provided without an examination, the Veteran should be scheduled for one. 

After reviewing the complete record, the examiner should address the following:

(a)  What is the significance of "permanent positive threshold shift (worse than reference threshold)," and to what was that referring.   

(b)  What is the significance of the statement that the "separation exam in July 1969, the results revealed significant hearing loss" and the fact that current testing did not show left ear hearing loss of VA compensation purposes? 

A complete rationale must be provided for all opinions.  If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

2.  Request an addendum opinion from the VA examiner who conducted January 2016 headache examination. The electronic record and a copy of this Remand must be made available to the examiner.  If that examiner is unavailable or it is otherwise determined that the opinion cannot be provided without an examination, the Veteran should be scheduled for one. 

After reviewing the record, the examiner should address the following:  

(a) Does the evidence of record clearly and unmistakably show (it is undebatable) that the Veteran had a headache disorder that existed prior to his entry to active duty in 1969?

(b)If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting headache disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

Please identify any such evidence with specificity.

(c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's headache disorder had its onset in service?

(d)  is it at least as likely as not that any diagnosed nausea is related to a headache disorder?  

In providing the opinion, the examiner should specifically consider (i) the Veteran's credible report that he sought treatment for headaches shortly after separation from service, and (ii) his credible report that he was treated for headaches while on reserve duty.  Note: the lack of treatment records detailing such treatment is NOT determinative.  

The examiner should provide a complete rationale for any opinion provided.  If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  After conducting any other development deemed necessary, re-adjudicate the Veteran's claims. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that is remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action 



must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
M. E LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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