HEARING LOSS

Summary

The veteran, who served in the Navy from February 1981 to February 1988, appeals the denial of service connection for a skin rash (tinea versicolor) and the grant of service connection for bilateral hearing loss and headaches. The veteran also sought service connection for brain surgery residuals secondary to headaches, which was remanded. For bilateral hearing loss, the veteran claimed exposure to hazardous noise from helicopters, aircraft generators, tools, and computer equipment during service. The Board found the evidence in relative equipoise regarding chronic in-service symptoms and continuous post-service symptoms. Credible lay statements from the veteran and his wife described hearing loss and tinnitus during service and continuous worsening afterward. The Board noted that VA had already granted service connection for tinnitus based on similar noise exposures. Given the equipoise and resolving doubt in the veteran's favor, service connection for bilateral sensorineural hearing loss was granted under the chronic disease presumption. Service connection for tinea versicolor was denied. The veteran's enlistment examination noted a preexisting skin disorder. While the veteran claimed aggravation by "bug juice" and yellow zinc chromate, the Board found this lay testimony contradicted by service treatment records, which did not indicate worsening. A private medical opinion suggesting a possible link to zinc chromate was deemed speculative. A VA examiner opined the condition preexisted service and was not aggravated beyond its natural progression. The Board found the evidence persuasively weighed against aggravation. Service connection for headaches was granted. The veteran reported headaches during service, and a reenlistment medical examination noted severe occipital headaches and frequent/severe headaches. The Board found this evidence established direct incurrence in service. Lay testimony from the veteran and his wife indicated the headaches continued post-service and were incapacitating, supporting the grant of direct service connection. The claim for brain surgery residuals secondary to headaches was remanded for a VA addendum opinion to determine if the subarachnoid hemorrhage was at least as likely as not caused by or aggravated by the service-connected headaches.

Rationale

Credible lay statements of hearing loss and tinnitus during service; Continuous worsening of symptoms post-service; Service-connected tinnitus based on similar noise exposures; Evidence in relative equipoise regarding chronic/continuous symptoms; Resolving doubt in veteran's favor

Full Decision Text

Citation Nr: 25003562
Decision Date: 03/14/25	Archive Date: 03/14/25

DOCKET NO. 17-60 696
DATE: March 14, 2025

ORDER

Service connection for bilateral sensorineural hearing loss is granted. 

Service connection for a skin rash of the upper back/tinea versicolor is denied.

Service connection for a headache disability is granted.

Entitlement to service connection for brain surgery residuals, as secondary to a headache disability, is remanded.

FINDINGS OF FACT

1.  The evidence shows a current disability of bilateral sensorineural hearing loss.

2.  The Veteran sustained acoustic trauma during service.

3.  Symptoms of hearing loss were chronic in service and continuous since service separation.   

4. At the time of the March 1981 service entrance examination, a pre-service skin disorder of tinea versicolor was diagnosed and noted on the examination report.

5.  The preexisting skin disorder of tinea versicolor did not undergo an increase in severity during service.

6.  The evidence shows a current diagnosis of migraines.

7.  The Veteran had headaches during service.

8.  The current headache/migraine disability had onset during service.

CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, the criteria for chronic disease presumptive service connection for bilateral sensorineural hearing loss have been met.  38 U.S.C. §§ 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. 

§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385.

2. The Veteran's skin rash of the upper back/tinea versicolor preexisted active service.  38 U.S.C. §§ 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 

3. The criteria for service connection for a skin rash of the upper back/tinea versicolor, including as due to aggravation of a preexisting disability, have not been met.  38 U.S.C. §§ 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306, 3.326(a). 

4.  Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a headache disability are met.  38 U.S.C. §§ 1131, 5104A, 5107; 

38 C.F.R. §§ 3.102, 3.303.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant in this case, served on active duty from February 1981 to February 1988.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). 

The Veteran and spouse testified at a Board hearing in April 2022 before the undersigned Acting Veterans Law Judge, and a copy of the hearing transcript has been associated with the record.  In February 2023, after determining that new and material evidence had been received, the Board issued a decision remanding the Veteran's claims for service connection for hearing loss, headaches (which included the issue of service-connection for a brain/neurological disorder other than headaches), and skin rash for additional development.  Specifically, the AOJ was to schedule the Veteran for various VA examinations.  

In May 2023, the Veteran received VA skin rash and headache examinations.  In June 2023, the Veteran received a VA examination for hearing loss.  In June 2023, the AOJ issued a Supplemental Statement of the Case, denying the Veteran's claims for service connection for hearing loss, skin rash, and headaches (also claimed as brain surgery secondary to headaches).  As the development directed in the Board's February 2023 Remand was adequately completed, the Board finds the instant matter ripe for adjudication.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection Legal Authority

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after
 a Supplemental Statement of the Case, denying the Veteran's claims for service connection for hearing loss, skin rash, and headaches (also claimed as brain surgery secondary to headaches).  As the development directed in the Board's February 2023 Remand was adequately completed, the Board finds the instant matter ripe for adjudication.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service Connection Legal Authority

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  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.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the persuasive weight of the evidence is against a claim, in which case, the claim is denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

1.  Service Connection for Bilateral Hearing Loss is Granted.

The Veteran contends that service connection for bilateral hearing loss is warranted due to exposure to hazardous and excessive noise from helicopter and aircraft generators during service.  See July 2020 VA Examination.  The Veteran also asserts being exposed to noise from tools used to remove paint in relationship to ship maintenance duties.  See April 2022 Hearing Transcript at 3.  Finally, the Veteran stated being exposed to loud computer equipment related to in-service duties generating checks 10-to-12 hours per day.  Id. at 11.  The Veteran denies any intermittent noise exposure after service that could be attributed to the hearing loss.  See April 2022 Hearing Transcript at 22.        

Sensorineural hearing loss, as an organic disease of the nervous system, is considered by VA to be a chronic disease under 38 C.F.R. § 3.309(a).  As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue on appeal.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).   

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 H
 be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).   

For VA purposes, 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 (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The evidence shows a diagnosis of bilateral sensorineural hearing loss to a severity recognized as a disability for VA purposes.  See June 2023 VA Examination.  Specifically, the VA examination report shows speech discrimination of 92 percent in the right ear.  While the left ear speech discrimination box reports an inability to test, considering the similarly of the readings of the right and left ears in Puretone thresholds, and when considering the other evidence of record, the Board finds the evidence at least in relative equipoise on the question of whether the speech discrimination score in the left ear was below 94 percent.  The Board notes that audiometric testing in July 2020 showed speech discrimination scores of 100 percent in the right ear and 94 percent in the left ear.  As the speech discrimination score decreased by eight percent in the right ear over the following three years, it stands to reason that the left ear, which was already significantly worse than the right ear, decreased by at least one percent in the following three years.  

The Veteran stated that his wife often has to repeat herself when speaking to him.  See April 2022 Hearing Transcript at 11.  It creates tension in their relationship because he stated that she expects him to respond, but he is not able to as he is not hearing what she is saying.  Id.  The Veteran's wife similarly testified at the April 2022 hearing that she has to elevate her voice when speaking to him.  Id.  Further, the Board notes that VA has already granted service connection for tinnitus based on a finding of in-service hazardous noise exposure.  

After a review of the lay and medical evidence in this case, the Board finds that the evidence is at least in relative equipoise on the question of whether there were "chronic" symptoms of hearing loss during service and "continuous" symptoms of hearing loss after service.  

On the question of whether symptoms of sensorineural hearing loss began during service and have been continuous since service separation, the Veteran has provided credible lay statements of an onset of hearing loss symptoms during service, specifically of decreased hearing following various duties in the Navy, to include working near loud helicopters, aircraft generators, noisy tools, and long hours working in a small space with loud computer equipment.  The Veteran has provided credible lay statements of in-service acoustic trauma with changes in hearing during service, particularly in conjunction with the onset of high-pitched ringing, buzzing, chirping, whistling, and whooshing that he experiences in both ears.  See March 2020 VA 21-4138 Statement in Support of Claim.  

In the Veteran's claim for service connection for tinnitus, the claim was based upon the same noise exposures that he has listed with respect to his bilateral hearing loss claim.  Id.  Importantly, he stated that the tinnitus in his ears makes it difficult to hear others speak, makes it hard to talk over the phone, and that it is difficult to hear the television, among other numerous issues.  Id.  During the April 2022 hearing, the Veteran's wife testified that she began to notice the Veteran's hearing loss during service, around 1986.  See April 2022 Hearing Transcript at 15-16.  She knew something was wrong when the Veteran began to speak more loudly, and observed that he was not even hearing himself.  Id.  The Veteran's wife recognized his hearing loss during service and also noted that
 listed with respect to his bilateral hearing loss claim.  Id.  Importantly, he stated that the tinnitus in his ears makes it difficult to hear others speak, makes it hard to talk over the phone, and that it is difficult to hear the television, among other numerous issues.  Id.  During the April 2022 hearing, the Veteran's wife testified that she began to notice the Veteran's hearing loss during service, around 1986.  See April 2022 Hearing Transcript at 15-16.  She knew something was wrong when the Veteran began to speak more loudly, and observed that he was not even hearing himself.  Id.  The Veteran's wife recognized his hearing loss during service and also noted that it continuously worsened.  Id.  The Veteran stated with regard to tinnitus that he is frequently told that he speaks too loudly.  See March 2020 VA 21-4138 Statement in Support of Claim.  

Service connection for tinnitus has been established on the same factual basis of loud noise exposures during service.  The fact that the service-connected tinnitus is based on the same factual finding of loud noise exposure during service as the bilateral hearing loss claim necessarily suggests that the same resulting nerve damage that caused tinnitus is also capable of immediately causing sensorineural hearing loss.  See March 2020 Private Medical Opinion; see also July 2020 Rating Decision ("service connection for tinnitus has been establish as directly related to military service.").  Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured."  See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible).  Because the Veteran sustained nerve damage during service that caused the service-connected tinnitus, by necessary logical inference, the same nerve damage to the inner ear during service is sufficient to cause the bilateral sensorineural hearing loss; therefore, the Board finds that the symptoms of bilateral hearing loss began during service and have been continuous since service separation.   

Because the Board has found the evidence in relative equipoise on the questions of "chronic" symptoms of hearing loss during service and continuous post-service symptoms of bilateral hearing loss, resolving reasonable doubt in the Veteran's favor, the Board finds that "chronic disease" presumptive service connection is warranted for bilateral hearing loss under 38 U.S.C. § 1112 and 38 C.F.R. 

§ 3.303(b).  The grant of chronic disease presumptive service connection for bilateral hearing loss renders moot all other theories of service connection, including direct service connection.  This obviates the need for the Board to address the negative VA nexus opinion on the matter.    

2.  Service Connection for Tinea Versicolor is Denied.

At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C. § 1111 (emphasis added).  Only such conditions as are recorded in examination reports are considered as "noted."  38 C.F.R. § 3.304(b).  When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed.  Crowe v. Brown, 7 Vet. App. 238 (1994).

If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service.
. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe, 7 Vet. App. at 246.

Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened."  Crowe at 247 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  However, the increase need not be so severe as to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306(b)(1); Hunt, 1 Vet. App. at 297.  Where the pre service disability did undergo an increase in severity during service, clear and unmistakable evidence (obvious or manifest, with the burden on VA) is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306(b).

The Veteran seeks service connection for an upper back skin rash, known as tinea versicolor.  The Veteran's preexisting skin condition of tinea versicolor was noted on the Veteran's enlistment examination for the Navy.  See March 1981 Report of Medical Examination.  

Because the probative evidence of record reflects that the Veteran's skin disability preexisted military service, the presumption of soundness does not attach, and service connection for tinea versicolor may be considered only on the basis of aggravation during active service.  38 U.S.C. § 1111; 38 C.F.R. §§ 3.304(b), 3.306.  Specifically, in deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any worsening of the disability during service, and then whether this constitutes an increase in the disability.  Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993).

Based on a review of the lay and medical evidence, the Board finds that the evidence persuasively weighs against the claim that the Veteran's tinea versicolor was aggravated by service. 

The Veteran contends that the preexisting tinea versicolor was aggravated during service because of a drink he was given during meals called, "bug juice."  See April 2022 Hearing Transcript at 7.  He stated that, because it was acid based, it aggravated the skin condition.  Id.  The Veteran also contends that the skin condition may have been aggravated by a chemical called yellow zinc chromate, which was used in the process of removing paint from the ship.  Id. at 10.  A private medical opinion in the record from June 2006 states that some of the Veteran's facial lesions could possibly be connected to exposure to zinc chromate.

First, the Board notes that there are no medical records showing that tinea versicolor presented on the Veteran's face; thus, it is not clear that the "facial lesions" to which the opinion refers is actually related to tinea versicolor.  Nevertheless, the Board finds this opinion generally speculative as it is a statement of mere possibility, rather than an opinion of probability.  For this reason, the Board finds it has no probative weight under the circumstances.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection).

There is no independent medical evidence showing that the
 versicolor presented on the Veteran's face; thus, it is not clear that the "facial lesions" to which the opinion refers is actually related to tinea versicolor.  Nevertheless, the Board finds this opinion generally speculative as it is a statement of mere possibility, rather than an opinion of probability.  For this reason, the Board finds it has no probative weight under the circumstances.  See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection).

There is no independent medical evidence showing that the Veteran's tinea versicolor worsened during service, thus the Veteran's more recent lay statements about bug juice are contradicted by more contemporaneous medical evidence in the service treatment records.  Three service treatment records reference the Veteran's tinea versicolor during service.  The first instance was shortly after enlistment in April 1981 that show the Veteran complained of itchiness.  The second instance was in December 1991, and it appears the Veteran was advised to wash with shampoo for treatment.  The third instance was in August 1982, which noted the chronic nature of tinea versicolor, and the Veteran was prescribed Benadryl.  None of the service treatment records mention any worsening of the Veteran's skin condition during service, nor are there any other service treatment records addressing the Veteran's skin condition in the following 6-plus years of active duty.  

Medical records from September 2007 show that the Veteran presented to a doctor's office for recurrence of tinea versicolor.  The doctor notes that the Veteran had some hyperpigmented patches with scale located on the back area.  He was advised by this doctor that tinea versicolor is a condition that may recur off and on, especially in warmer weather due to sweating and moisture.  In a May 2014 private medical report, the Veteran stated that the problem has existed for years and that sweating seems to make it worse.  The doctor consulted the Veteran on the chronic nature of this condition, and he was provided a plan for properly cleansing the skin and taking medications.  Nothing in the private medical reports indicate that the Veteran's service aggravated the condition.  

The Veteran was provided a VA examination in May 2023 regarding tinea versicolor, and the examiner opined that, based on the record and an in-person examination, the claimed condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression during service.  The examiner noted that tinea versicolor is a body fungus and that, even after it is cured and resolved, will leave behind discolored spots.  The Veteran's private doctor's statement that the condition is chronic in nature and subject to flares from warm weather and sweat is also instructive against a finding that the Veteran's condition worsened during service based on the mere fact that he sought treatment.    

Thus, the persuasive weight of the evidence shows no aggravation of the preexisting tinea versicolor during active service.  As the evidence is persuasively against a finding of worsening beyond natural progression during service, the presumption of aggravation does not arise in this case, and thus the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Because aggravation by service of the preexisting tinea versicolor is not demonstrated, the appeal for service connection for tinea versicolor must be denied.          

3.  Service Connection for Headaches is Granted. 

The Veteran seeks service connection for headaches that he states occurred during and after service.  His headaches were diagnosed as migraines by a private medical provider in March 2001.    

The evidence is at least in equipoise as to whether the Veteran's current headaches/migraines had onset in service.  The Veteran's spouse testified during the April 2022 hearing that the Veteran complained of headaches during service.  See April 2022 Hearing Transcript at 20.  She assumed it was from the noise aboard the ship.  Id.  In 1983 during service, the Veteran completed a medical examination as part of his reenlistment, in which it was noted that the Veteran had severe occipital headaches when doing heavy weightlifting.  See December 1983 Report of Medical History.  The same document reflects that the Veteran complained of frequent or severe headaches.  The Veteran is competent to report personal experience of headaches, as this disability is primarily perceived through one's own senses (pain and related sensations).  When a condition may be diagnosed by its unique and readily identifiable features, as is
 the Veteran complained of headaches during service.  See April 2022 Hearing Transcript at 20.  She assumed it was from the noise aboard the ship.  Id.  In 1983 during service, the Veteran completed a medical examination as part of his reenlistment, in which it was noted that the Veteran had severe occipital headaches when doing heavy weightlifting.  See December 1983 Report of Medical History.  The same document reflects that the Veteran complained of frequent or severe headaches.  The Veteran is competent to report personal experience of headaches, as this disability is primarily perceived through one's own senses (pain and related sensations).  When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Based on this evidence, the Board finds that the Veteran's headache disability was directly incurred in service.          

The evidence is at least in relative equipoise on the question of whether the current headache disability is etiologically related to service.  During the April 2022 hearing, the Veteran's wife testified that the Veteran's headaches continued after his separation from service, and the Veteran similarly testified that his headaches continue to this day.  The Veteran stated that the headaches are incapacitating.  In February 2001, the Veteran consulted with a private doctor about the recurrent headaches.  See February 2001 Letter from Private Medical Doctor.  The pain was described as coming on without warning and each episode lasted approximately 15 minutes.  Sometimes the Veteran experienced numbness of the left upper extremity.  In March 2001, the same private medical doctor opined that the Veteran's headaches were atypical and may represent a variant of migraine.  See March 2001 Letter from Private Medical Doctor.  

Accordingly, the Board is granting service connection based on the finding that the current headache symptoms had onset in service and were, therefore, directly "incurred in" service.  See 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge that was incurred in service).  The finding, based on consistent and credible lay evidence, which establishes the persistence of headaches since service is supportive of the direct service connection theory of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosed migraine disability.  See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease).

For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the headache disability was directly incurred in active service; thus, the criteria for direct service connection for headaches are met.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  As such, a direct medical nexus opinion is not necessary to decide this claim. 

REASONS FOR REMAND

4.  Entitlement to Service Connection for Brain Surgery, Secondary to Headaches, is remanded. 

During the course of this appeal the Veteran has argued that the issue of service connection for headaches also includes the issue of service connection for brain surgery, and any residuals thereof, as related/due to the now service-connected headaches.  See July 2014 Notice of Disagreement.  The Veteran has been diagnosed with status post intracranial subarachnoid bleed.  See May 2023 VA Examination.  

The record reflects that in February 2008, the Veteran had a subarachnoid hemorrhage, after which he experienced symptoms of headaches, nausea, and dizziness.  See February 2008 Follow-Up Medical Record.  The Veteran submitted medical records related to this event, which were received by VA in December 2009.  Here, the Board has bifurcated the issue of service connection for headaches from the included issue of service-connection for a brain/neurological disorder other than headaches, and finds remand for an addendum secondary service connection VA medical opinion is necessary.                

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.
age, after which he experienced symptoms of headaches, nausea, and dizziness.  See February 2008 Follow-Up Medical Record.  The Veteran submitted medical records related to this event, which were received by VA in December 2009.  Here, the Board has bifurcated the issue of service connection for headaches from the included issue of service-connection for a brain/neurological disorder other than headaches, and finds remand for an addendum secondary service connection VA medical opinion is necessary.                

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310 (a)-(b).  Under the holding in Spicer, secondary causation exists when, but for the service-connected disability, the non-service-connected disability was caused by a service-connected disability either in a direct, etiological way, or via multiple steps in a causal chain.  Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted).  Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability.  Id. at 1364.  For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability.  Id.

Because the Board granted service connection for the Veteran's headache disability, a VA examination and/or opinion is needed to address the Veteran's bifurcated service connection claim for brain surgery secondary to the headache disability.  As such, a remand is required.

The aforementioned matter is REMANDED for the following actions:

1.  Obtain an addendum opinion from an appropriate clinician regarding the Veteran's February 2008 subarachnoid hemorrhage.  An in-person examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence.  The complete claims file must be made available to and reviewed by the examiner.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  The examiner should provide the following opinions:

(a.) Is it at least as likely as not that the Veteran's subarachnoid hemorrhage was caused by the now service-connected headache disability?

(b.) Is it at least as likely as not that the Veteran's subarachnoid hemorrhage was aggravated by (worsened in severity by) the service-connected headache disability?

2.   Then readjudicate the remanded issue.

 

 

E. Blowers

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Prairie, N. R.

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.