Citation Nr: 18160434
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-21 009
DATE:	December 26, 2018
ORDER
The application to reopen a previously denied claim for service connection for a neck disability is granted.
The application to reopen a previously denied claim for service connection for lumbar spine degenerative joint disease (DJD) is granted.
The application to reopen a previously denied claim for service connection for bilateral hearing loss is granted. 
Entitlement to service connection for a neck disability is granted.
Entitlement to service connection for lumbar spine DJD is granted.
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to an initial rating of 50 percent for headaches associated with service-connected skull fracture is granted, subject to controlling regulations governing the payment of monetary awards.
REMANDED
 Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. In a January 2010 rating decision, the RO denied the Veteran’s application to reopen his claims for entitlement to service connection for lumbar spine DJD and neck disability, and also denied service connection for bilateral hearing loss. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 
2. Evidence received since the January 2010 rating decision relates to the prior basis for the denials and tends to raise a reasonable possibility of substantiating the claim of service connection for lumbar spine DJD, a neck disability, and bilateral hearing loss.
3. The Veteran’s neck disability is related to his in-service October 1966 motor vehicle accident (MVA).
4. The Veteran’s lumbar spine DJD is related to his in-service October 1966 MVA and October 1967 football injury.
5. The Veteran’s bilateral hearing loss is related to his in-service acoustic trauma.
6. The Veteran’s headaches were manifested by symptoms approximating frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
CONCLUSIONS OF LAW
1. The January 2010 rating decision that denied applications to reopen the claims of entitlement to service connection for lumbar spine DJD and a neck disability, and denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103.
2.  The additional evidence received since the January 2010 decision is new and material, and the claims of service connection for lumbar spine DJD, a neck disability, and bilateral hearing loss are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
4. The criteria for service connection for lumbar spine DJD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
5. The criteria for service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385.
6. The criteria for an initial rating of 50 percent for migraine headaches have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.124a, DC 8100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1965 to January 1969.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).
The August 2012 rating decision denied the Veteran’s petition to reopen his claims for service connection for lumbar spine DJD, a neck disability, headaches, and bilateral hearing loss. In a June 2015 rating decision, the RO reopened the Veteran’s claim for service connection for headaches, and awarded service connection secondary to service-connected skull fracture rated as 30 percent disabling. The Veteran filed a timely notice of disagreement (NOD) to the initial rating of 30 percent. However, he did not file a substantive VA Form 9 after the January 2017 Statement of the Case. 
In December 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a copy of the transcript has not been associated with the claims file, but the Board finds this is not prejudicial to the Veteran as the benefits sought are being granted in full. The Board notes that the Veteran testified concerning the issues of service connection for lumbar spine disability, a neck disability, and bilateral hearing loss as well as an initial higher rating for headaches.
In Percy v. Shinseki, 23 Vet. App 37 (2009), the Court of Appeals for Veterans Claims (Court) noted that, although Congress used “permissive language” in the statute for filing a substantive appeal (38 U.S.C.A. § 7105 (d) (3), the language used by Congress in enacting the statute for filing a NOD was “mandatory,” indicating a clear intention to foreclose the Board’s exercise of jurisdiction over a matter where a NOD had not been filed, but not where a substantive appeal had not been filed. Id. at 44, citing Act of Sept. 19, 1962, Pub. L. No. 87-666, 76 Stat. 553 (enacting both NOD and Substantive Appeal requirements). The Court stated that “[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: ‘notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination’ and ‘[i]f no notice of disagreement is filed... within the prescribed period, the action or determination shall become final.’” Id. 
In Percy, the appellant had filed a timely NOD but failed to file a substantive appeal as to all of the issues on appeal. Id. at 38. As the Court found the filing of a substantive appeal was permissive, the filing of the mandatory NOD in Percy allowed the Board to assume jurisdiction of the issues not included in the original substantive appeal. Id. at 46-47. Given the rationale underlying Percy, the December 2018 hearing before the undersigned stating that the issue of higher initial rating for headaches is on appeal indicating reliance by the Veteran, the desire to provide timely appellate review, and a lack of any prejudice to the Veteran in this matter, the Board will proceed with deciding the claim relating to a higher initial rating for headaches. 
Finally, the Veteran has alleged an inability to retain employment due, in part, to his service-connected headaches.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  As such, the issue of entitlement to a TDIU is now properly before the Board
New and Material Evidence
Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).
Here, new and material evidence has been received.  The Veteran’s claims for service connection for lumbar spine DJD, a neck disability, and bilateral hearing loss were denied because there was no evidence that the Veteran had a diagnosis of a neck disability and bilateral hearing loss during service or within one year of discharge; or that his current lumbar spine DJD, neck disability, and bilateral hearing loss was related to service.  To reopen the claims, there would have to be new evidence that related to the basis for the prior denial or the new evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).
In a January 2010 rating decision, the RO denied the Veteran’s petition to reopen his claims for service connection for lumbar spine DJD and a neck disability; and denied service connection for bilateral hearing loss.  The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the January 2010 rating decision is final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.
The relevant evidence of record at the time of the January 2010 rating decision included the Veteran’s service treatment records (STRs), an April 1969 VA lumbar spine examination report, and the Veteran’s statements concerning the etiology of his disabilities.  
Relevant evidence received more than one year since the January 2010 rating decision includes VA examination reports discussing the etiology of the Veteran’s claims, opinions from private physicians addressing the etiology of the Veteran’s lumbar spine DJD and neck disability, numerous medical treatises concerning the Veteran’s claims, and the Veteran’s testimony at his December 2018 hearing before the undersigned VLJ. 
As such, the additional evidence submitted since the January 2010 rating decision is new and material evidence that relates to unestablished facts necessary to substantiate the merits of the claims. Reopening of the claims for service connection for lumbar spine DJD, a neck disability, and bilateral hearing loss is therefore warranted.
Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a).  Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)).
In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
“[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.”  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”).
1. Entitlement to service connection for a neck disability
The Veteran contends that he has a neck disability that is due to or a result of his October 1966 in-service MVA.
STRs are silent as to any complaints, treatments, or diagnoses for a neck disability. However, the records reflect that the Veteran was involved in a MVA in October 1966 and injured his low back playing football in October 1967.
A January 2012 VA examination report reflects that the Veteran was involved in a MVA during service in 1966. The Veteran reported that he was ejected from the vehicle and spent two to three days in the hospital for a concussion and skull fracture. The Veteran stated that he started having neck pain after the accident but did not seek medical treatment until five to six years after discharge. He stated that he was taking 1000 to 1200 milligrams (mg) of ibuprofen four times per day since service. He also reported that he was in a MVA in 1984 and had whiplash injury, but that magnetic resonance imaging (MRI) at the time showed that he had an old injury to the cervical spine. The examiner opined that the Veteran’s current neck disability was less likely than not related to his in-service MVA because there was no documentation of treatment for a neck injury found in the records.
A March 2013 private physician report from A.S., CNP, documents an in-person evaluation of the Veteran and review of the medical records since service. The Veteran reported that he experienced neck pain since service. The physician opined that it was possible that the MVA and football injuries could cause neck pain. She explained that neck pain was a symptom of a medical condition, not a diagnosis itself. Once diagnosed, the condition did not resolve, but was “merely dealt with through the manner in which the symptomatology was expressed.” She acknowledged that age could also be a contributing factor to pain, but when one assessed the original cause of the pain a review of the history was of outmost importance. She stated that neck pain could have periods of exacerbation throughout one’s life, and it was possible that these injuries had played an important role in the Veteran’s current neck pain.
A January 2014 private physician report from T.A., MD, indicates reviewed of the claims file and in-person examination of the Veteran. He noted that the Veteran was in a serious MVA during service, and explained that science and medicine had progressed since the 1966 MVA. He noted that records showed a possible skull fracture after the MVA, and that the Veteran was diagnosed with cerebral concussion and post traumatic cephalgia. Citing medical articles, T.A. explained that it was now well understood that neck pain and headaches were the most common physical complaints following concussions; and that the professional evidence was clear that neck injuries and headaches were symptoms of concussion. As such, he found that without other evidence to the contrary, he believed that the Veteran’s current neck problems were caused by the 1966 MVA and the Veteran was still suffering the effects of the serious accident and concussion.
For the following reasons, service connection for a neck disability is warranted.
As an initial matter, the Board notes that the Veteran has not been diagnosed with a neck disability.  However, he has asserted continuous neck pain since his 1966 MVA. In Saunders, the Federal Circuit found that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  886 F.3d at 1361.  Here, the Board finds that the Veteran’s neck pain causes functional impairment of earning capacity and thus constitutes disability under the meaning of 38 U.S.C. § 1110 as interpreted in Saunders. Specifically, the Veteran reported that he experienced pain with movement that impaired his ability to work. As such, the Veteran has met the current disability requirement with regard to the neck.
In addition, while STRs do not reflect complaints, treatments, or diagnoses for a neck disability, the Veteran has consistently stated that he experienced neck pain since his documented 1966 in-service MVA.  The Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as neck pain, and the Board finds that he is credible in his assertions of continuous neck pain since service.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Thus, the Veteran meets the in-service injury criterion for service connection.
Therefore, the Veteran’s claim turns on whether there is a nexus between the Veteran’s service and his current disability.  The Board notes that the January 2012 VA examiner provided a negative opinion, finding that the Veteran’s neck disability was not related to service because there was no evidence of neck pain during service. The January 2012 VA opinion is flawed, however, because the examiner did not address the Veteran’s lay statements of continuity of symptomatology of neck pain since service, and impermissibly relied on the lack of service treatment records as the sole basis of the opinion. The opinion is therefore not probative.  Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).
Conversely, in her March 2013, letter, A.S. opined that “it was possible” that the Veteran’s 1966 MVA and 1967 football injury “had played an important role in the Veteran’s current neck pain.” Further, T.A.’s January 2014 report noted that the professional evidence was clear that neck injuries and headaches were symptoms of concussion; and he opined that, without other evidence to the contrary, the Veteran’s current neck problems were caused by the 1966 MVA and that the Veteran was still suffering the effects of the serious accident and concussion. Both A.S. and T.A. clearly opined that the medical records, combined with the Veteran’s lay statements, formed the basis of their opinion that his current neck pain was incurred during active duty. The opinions are therefore entitled to significant probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).
The evidence is thus at least evenly balanced as to whether the Veteran’s neck disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a neck disability is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
2. Entitlement to service connection for lumbar spine degenerative joint disease (DJD)
The Veteran contends that his lumbar spine DJD is due to or a result of his 1967 in-service football injury.
STRs in October 1967 reflect lower back pain from an injury while playing football, with muscle spasm grossly evident. In January 1968, records document back pain and left-side rhomboid muscle spasm. While the January 1969 separation report of medical examination reflects normal musculoskeletal evaluation, in an August 2009 statement, the Veteran explained that he told the examiner about his back injuries, and was told that he would have to have to extend his stay in the military up to four or five months for observation. He stated that he did not want to stay longer and therefore signed a medical waiver.
An April 1969 VA examination report reflects an October 1966 MVA and December 1967 back injury while playing football. The Veteran reported pain in the left lumbosacral area, which was worse with heavy lifting. The examiner noted that there was no obvious pain to the back during examination and x-rays showed laminal fusion of the pars interarticularis of L5 on the right with no subluxation. The examiner diagnosed congenital anomaly of L5.
A July 2008 private treatment record reflects x-rays showing Grade I anterior subluxation of L5 upon S1 with likely associated bilateral pars defect; disc space narrowing; vacuum disc phenomenon and facet arthropathy at L5-S1 level; mild degenerative changes of the remainder of the lumbar spine; and minimal levocurvature of the lumbar spine.
A January 2012 VA examination report reflects that the Veteran was involved in a MVA during service in 1966. The Veteran stated that he started having back pain after the accident but did not seek medical treatment until five to six years after discharge. The examiner noted that STRs reflected pain in the left sacroiliac region while playing football in 1967, but that there was no further documentation of back pain. The examiner opined that the Veteran’s current low back disability was less likely than not related to his in-service MVA because there was no documentation of treatment for a back injury found in the records.
A March 2013 private physician report from A.S., CNP, documents in-person evaluation of the Veteran and review of the medical records since service. The Veteran reported that he experienced back pain since service. The physician opined that it was possible that the MVA and football injuries could cause back pain. She explained that back pain was a symptom of a medical condition, not a diagnosis itself. Once diagnosed, the condition did not resolve, but was “merely dealt with through the manner in which the symptomatology was expressed.” She acknowledged that age could also be a contributing factor to pain, but when one assessed the original cause of the pain a review of the history was of outmost importance. She stated that back pain could have periods of exacerbation throughout one’s life, and it was possible that these injuries had played an important role in the Veteran’s current back pain.
A January 2014 private physician report from T.A., MD, indicates reviewed of the claims file and in-person examination of the Veteran. He noted that there was no evidence that Veteran’s back preexisted service, and that he suffered a football injury in October 1967, where the Veteran reported a L5 disc herniation. T.A. explained that once a person injured their back, the injury never fully resolved, but instead the patient had to manage the pain and any exacerbation of the injury. T.A. found that the Veteran demonstrated continuity of treatment and, given the length of time that had passed, it was “easy to diagnose the Veteran with chronic back pain.” He opined that it was more likely than not that the Veteran’s current back pain originally occurred when he first injured it in service, and that over time the severity of the original injury worsened with age, circumstances, and maintenance of health. For that reason, he disagreed with the VA examiner’s position that the current back problems of the Veteran were only attributable to the aging process; and found that the trauma sustained in service more likely than not compromised his back, and that over time it was more likely than not ultimately exacerbated by other circumstances. Thus, he believed that the etiology of the current back pain and issues arose from the in-service football injury.
For the following reasons, service connection for lumbar spine DJD is warranted.
As an initial matter, the Board notes that the Veteran has been diagnosed with lumbar spine DJD, and that he had an in-service low back injury. Thus, the Veteran meets the first and second criteria for service connection. 38 C.F.R. § 3.303.
Therefore, the Veteran’s claim turns on whether there is a nexus between the Veteran’s service and his current disability.  The Board notes that the January 2012 VA examiner provided a negative opinion, finding that the Veteran’s back disability was not related to service because there was no evidence of back treatment in the records. The January 2012 VA opinion is flawed, however, because the examiner did not address the Veteran’s lay statements of continuity of symptomatology of back pain since service, and impermissibly relied on the lack of service treatment records as the sole basis of the opinion. In addition, the examiner’s opinion is inconsistent with his findings that the Veteran had in-service injuries and that he sought service connection shortly after separation from service. The opinion is therefore not probative.  Buchanan, 451 F.3d at 1336, n. 1.
Conversely, in her March 2013, letter, A.S. opined that “it was possible” that the Veteran’s 1966 MVA and 1967 football injury “had played an important role in the Veteran’s current back pain.” Further, in January 2014, T.A. opined that it was more likely than not that the Veteran’s current back pain originally occurred when he first injured it in service, and that over time the severity of the original injury worsened with age, circumstances, and maintenance of health. He ultimately found that the etiology of the current back pain and issues arose from the in-service football injury. Both A.S. and T.A. clearly opined that the medical records, combined with the Veteran’s lay statements, formed the basis of their opinion that his current neck pain was incurred during active duty. The opinions are therefore entitled to significant probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.
The evidence is thus at least evenly balanced as to whether the Veteran’s currently diagnosed lumbar spine DJD is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbar spine DJD is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
3. Entitlement to service connection for bilateral hearing loss
The Veteran contends that his bilateral hearing loss is due to his in-service exposure to acoustic trauma or, alternatively, from taking high doses of Ibuprofen for over 40 years. 
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.
The Veteran has a current diagnosis of bilateral hearing loss. In addition, the Veteran’s military occupational specialty (MOS) in the Air Force was stock clerk, but he contended that military noise exposure included aircrafts and helicopters. The Board finds the Veteran competent and credible in his assertions of in-service noise exposure, and therefore exposure to in-service acoustic trauma is conceded.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).
Service treatment records (STRs) include auditory thresholds recorded at the time of enlistment and separation. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975.
In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows and set apart in parentheses:
Hertz	500	1000	2000	3000	4000
Add	15	10	10	10	5
 
STRs reflect a January 1965 enlistment examination report with an audiogram showing pure tone thresholds as follows:
 	HERTZ
 	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
RIGHT	-10 (5)	-5 (5)	-5 (5)	5 (15)	5 (10)
LEFT	-5 (10)	-10 (0)	-10 (0)	0 (10)	20 (25)

A January 1969 separation examination report documents an audiogram showing pure tone thresholds as follows:
 	HERTZ
 	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
RIGHT	0 (15)	0 (10)	-5 (5)	20 (30)	25 (30)
LEFT	0 (15)	-5 (5)	-5 (5)	10 (20)	0 (5)
A May 2012 VA audiological examination reflects that the Veteran experienced decreased hearing in both ears. The pure tone audiometry test results were as follows:
 	HERTZ
 	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
RIGHT	15	35	50	60	60
LEFT	15	30	55	60	60
The results of the speech discrimination score (Maryland CNC word list) were 92 percent in the right ear and 90 percent in the left ear. In a June 2012 addendum opinion, the examiner opined that the Veteran’s hearing loss was less likely than not related to service because the Veteran’s hearing was within normal limits bilaterally on the separation examination despite a slight decibel shift between entrance and separation exam.  
For the following reasons, service connection for bilateral hearing loss is warranted.
The audiometric scores on the May 2012 VA examination report reflect that the Veteran has met the current disability requirement for hearing loss pursuant to 38 C.F.R. § 3.385.  Moreover, the VA examiner’s opinion is flawed because he relied, in part, on the lack of hearing loss diagnosis during service to reach his conclusion. The Court in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s holding in Hensley is consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See id. The reliance on the absence of hearing loss in service lessens the probative weight of the medical opinion.
Here, the evidence reflects that there were bilateral threshold hearing shifts during service in all frequencies. Thus, the Veteran’s competent and credible statements of in-service acoustic trauma and continuity of hearing loss symptomatology, and the STRs indicating a worsening bilaterally in hearing at separation, all weigh in favor of a nexus between the current bilateral hearing loss disability and the in-service acoustic trauma. The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
Rating
4. Entitlement to an initial rating of 50 percent for headaches associated with service-connected skull fracture
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath, 1 Vet. App. at 589.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Diagnostic Code 8100 provides that a 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months.  38 C.F.R. § 4.124a.
In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that, where the Board refused to award a 50 percent disability rating for a headache disorder without discussing the “interplay” among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies “if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned”), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although “coordination of rating with impairment of function will, however, be expected in all instances”), the Board committed reasons or bases error.  18 Vet. App. at 445.  However, in Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018), the Court clarified that the criteria of DC 8100 are successive, and 38 C.F.R. §§ 4.7 and 4.21 are not for application.
The Court also held in Pierce that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50% rating.”  18 Vet. App. 440, 446 (2004).  In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability.  Id. at 445.
A January 2012 VA examination report reflects that the Veteran’s last migraine was in October/November 2011. He reported that he got two to three migraines per year, but that he had frequent headaches one to two times per week. He stated that these headaches lasted four to five hours, but sometimes lasted one to 1.5 days. He endorsed very bad non-migraine symptoms at most once per month. He stated that Ibuprofen and Excedrin Migraine helped, but that the most helpful was lying down in bed in a dark room. The Veteran had occasional episodes of nausea, and sensitivity to light and sound that lasted one to two days. He had prostrating migraine pain less than once every two months, and prostrating attacks of non-migraine pain more frequently than once per month. He stated that he was a real estate agent, and that during his migraine and very bad non-migraine headaches he could not work because he had to lie down in a dark, quiet room, and, thus was unable to show any homes.
A March 2013 private treatment record indicates that the Veteran’s headaches were often intense and at times incapacitating, which occurred more than once a month and lasted for several days at a time. In January 2014, the Veteran stated that he had very frequent attacks that were completely prostrating and prolonged for 24 to 48 hours, which occurred at last twice a month.
In July 2016, the Veteran submitted his journal entries for 2015, which reflected migraines from January 7 to 10; January 22 to 24 with vomiting; February 16 to 19, which he spent in bed for almost 2 days; March 12 to 16, which he spent in the spare room the first two days; May 3 to 5; June 10 to 13; July 21 to 23 with nausea; August 15 to 17; Sept 3 to 6; Oct 18 to 21 with vomiting; November 11 to 13; November 28 to 30; December 18 to 21; and December 26 to 28. He stated that most of the time he also experienced vomiting, nausea, difficulty sleeping, blurred vision, extreme sensitivity to light and noise, and extreme anxiety. He reported that he had been working in real estate for almost 14 years, but he had decided to stop due to his migraines and back pain.
Upon review of the evidence, the Board finds that an initial rating of 50 percent for migraine headaches is warranted for the entirety of the appeal period. 
The evidence reflects that in 2012 he had headaches one to two times per week with occasional episodes of nausea, and sensitivity to light and sound; prostrating migraine pain less than once every two months; and prostrating attacks of non-migraine pain more frequently than once per month. In March 2013, he endorsed headaches more than once a month that were at times incapacitating, and in January 2014 he endorsed very frequent attacks that were completely prostrating and prolonged that occurred at last twice a month. In July 2016, he provided evidence of migraine headaches 14 times for 2015, each lasting two of more days with symptoms of nausea, vomiting, and sensitivity to light and sound. In addition, he stated that he had decided to stop working as a real estate agent because of his migraines. These symptoms thus meet the criteria of very frequent completely prostrating headaches that are capable of producing severe economic inadaptability that are required for a 50 percent rating under DC 8100 as interpreted in Pierce and Johnson.
The above determination is based on consideration of the applicable provisions of VA’s rating schedule.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).”
REASONS FOR REMAND
1. Entitlement to a TDIU is remanded.
The Veteran has alleged an inability to retain employment due to his now service-connected lumbar spine DJD and headaches. The Board notes that the decision herein granted service connection for lumbar spine DJD, a neck disability, and bilateral hearing loss and awarded an initial rating of 50 percent for the Veteran’s service-connected headaches.  The issue of entitlement to a TDIU is part and parcel of any rating claim on appeal if there is evidence of unemployability due to the disability for which the higher rating is sought.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Thus, a remand for initial development and adjudication of the issue of entitlement to a TDIU by the RO in the first instance, after implementing the Board’s decisions herein, is appropriate in this case.
The matters are REMANDED for the following action:
Adjudicate the issue of entitlement to a TDIU in the first instance after implementing the Board’s decisions herein.


 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Leifert, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.