MIGRAINE

MELANIE J. MANN · 2026 · Case ID: A26040173

MIXED

Summary

The Veteran, a U.S. Marine Corps Veteran who served from June 1973 to June 1977, appeals the denial of service connection for headaches and an increased rating for bilateral hearing loss. The Board granted service connection for headaches, finding the Veteran's testimony regarding an in-service fall and subsequent headaches credible and consistent with continuity of symptomatology, despite unavailable service treatment records. The Board applied the benefit of the doubt in the Veteran's favor for the headache claim. For bilateral hearing loss, the Veteran sought an increased rating beyond the 0% rating assigned by the agency of original jurisdiction. Audiometric testing showed Level II hearing loss in both ears, which the Board determined did not meet the threshold for a compensable rating. The Board found the evidence weighed against the claim for an increased rating, thus denying it. The case was remanded for further development on claims for acquired psychiatric disability, stomach disability, and erectile dysfunction, citing the PACT Act's requirement for examinations concerning toxic exposure risk activities (TERAs) and the need for further medical opinions to establish nexus.

Rationale

Favorable finding by AOJ for current disability; Unavailable service records heightened duty to consider benefit of doubt; Veteran's testimony found competent and credible regarding in-service fall and continuity of symptoms

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210422-156108

Full Decision Text

Citation Nr: A26040173
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210422-156108
DATE: April 29, 2026

ORDER

Entitlement to service connection for a headache disability is granted.

Entitlement to a disability rating in excess of 0 percent for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disability is remanded.

Entitlement to service connection for a stomach disability is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

FINDINGS OF FACT

1. The evidence of record is in approximate balance regarding whether the Veteran has continuously had headache symptoms since service.

2. Throughout the appeal period, the Veteran's bilateral hearing loss disability was productive of no worse than Level II hearing loss in the right ear and Level II hearing loss in the left ear.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a headache disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria for entitlement to a disability rating in excess of 0 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Marine Corps from June 1973 to June 1977. His decorations include the National Defense Service Medal and the Rifle Expert Badge. The Board is grateful for the Veteran's honorable service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 rating decision of the Department of Veterans Affairs (VA) regional office (RO). In April 2021, the Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Hearing docket.

The Veteran testified before the undersigned Veterans Law Judge in a virtual hearing in February 2025. A copy of the hearing transcript is of record.

In January 2025, the Veteran's attorney submitted a Notice of Intent to Withdraw from Representation. To the extent that the Veteran's representative has filed a motion to withdraw representation in this appeal, the Board finds that the requirements of a withdrawal of representation have not been met. Pursuant to 38 C.F.R. § 20.6 Rule 6(a)(2), after an appeal to the Board has been filed, a representative may not withdraw services as a representative unless good cause is shown on motion. The regulation also states that the motion must include the "reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed." Here, the January 2025 Notice of Intent to Withdraw from Representation is invalid as it does not state good cause for the withdrawal of representation, as required by the regulation, or include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran. Thus, upon consideration of the motion, and pursuant to 38 C.F.R. § 20.6 Rule 6, the Board finds that the requirements for a motion to withdraw representation have not been satisfied. Accordingly, to ensure due process, the representative of record is retained for the purpose of this appeal.

Evidentiary Window

As the Veteran chose the Hearing docket, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) rating decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.
or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for an acquired psychiatric disability, entitlement to service connection for a stomach disability, and entitlement to service connection for erectile dysfunction, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.304. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases (e.g., headaches as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board is bound by favorable findings of the AOJ unless rebutted by clear and unmistakable (undebatable) evidence. 38 C.F.R. § 3.104(c).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balance, i.e., "nearly equal," but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for a headache disability is granted.

The Veteran maintains entitlement to service connection for a headache disability which he avers had its onset during active duty service.

In the rating decision on appeal, the AOJ favorably found that the Veteran has a current headache disability, as VA outpatient records confirm complaint, diagnosis, or treatment for headaches. The Board finds that there is no evidence of clear and unmistakable error regarding this favorable finding, and it is binding on the Board. The Board finds that the first element of service connection, the presence of a current disability, has been met.

Regarding the second element of service connection, the presence of an in-service event, injury, or illness, during the Veteran's September 2020 VA examination he reported that he fell from the top bunk during service more than once resulting in loss of consciousness on at least one occasion. He maintains that since that time he has experienced headaches two to three times a week which last from fifteen minutes to several hours. These headaches are accompanied by nausea and sensitivity to light and sound. The Veteran's reported in-service falls are not corroborated by service treatment records because the Veteran's records have been deemed unavailable by the National Personnel Records Center (NPRC). When this is the case, there is a heightened duty on the part of VA to consider the applicability of the
second element of service connection, the presence of an in-service event, injury, or illness, during the Veteran's September 2020 VA examination he reported that he fell from the top bunk during service more than once resulting in loss of consciousness on at least one occasion. He maintains that since that time he has experienced headaches two to three times a week which last from fifteen minutes to several hours. These headaches are accompanied by nausea and sensitivity to light and sound. The Veteran's reported in-service falls are not corroborated by service treatment records because the Veteran's records have been deemed unavailable by the National Personnel Records Center (NPRC). When this is the case, there is a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). Resolving all reasonable doubt in the Veteran's favor, the Board finds he is competent and credible to describe the in-service fall. Therefore, the Board finds that the second element of service connection, an in-service event, disease, or injury, has been met.

The Board now turns to the third and final element of service connection, a nexus between the Veteran's current disability and the aforementioned in-service fall. To that end, the Board finds that the Veteran, as lay person, is competent to speak to manifestations or symptoms of migraines or headaches. He is competent to express those observable symptoms of his headache disability, as he has throughout the claims period. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Here, the Board finds that headaches are the type of medical condition which a normal lay person can competently attest to. Therefore, as the Board finds that the Veteran's competent and credible statements speak to the continuity of his symptoms since his fall during active service, the Board finds that the Veteran's claim must be awarded on a presumptive basis, based on continuity of symptomatology. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, the claim is granted.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7.

2. Entitlement to a disability rating in excess of 0 percent for bilateral hearing loss is denied.

The Veteran maintains entitlement to a disability rating in excess of 0 percent for his service-connected bilateral hearing loss, rated under Diagnostic Code 6100.

To establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85.

The Veteran attended a VA examination in November 2020. Puretone thresholds, in decibels, were as follows:

HERTZ
Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The Veteran attended a VA examination in November 2020. Puretone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 35 40 55 80 85

LEFT 35 40 55 80 85

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Concerning the impact of the Veteran's hearing loss on his daily life, he reported that his wife tells him to turn the television and radio volume down because he has to have them up loud to hear them. She also states that he does not hear her when she speaks to him.

These audiometry test results equate to Level II hearing the Veteran's right ear and Level II hearing in the Veteran's left ear. Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing in the right ear and Level II hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. No additional audiometry test results are of record during the appeal period.

The Veteran does not meet the thresholds for a compensable rating for his bilateral hearing loss. Again, this is a mechanical application of his hearing thresholds to the rating criteria. If at any point in the future, he believes that his hearing acuity has decreased, he is invited to file for an increased rating.

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the evidence persuasively weighs against the Veteran's claim for a disability rating in excess of 0 percent for his service-connected bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disability is remanded.

The Veteran maintains entitlement to service connection for an acquired psychiatric disability which he asserts is related to in-service incidents. The Board notes that the AOJ did not obtain a VA examination regarding this claim.

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in disability compensation claims, the VA must provide a VA medical examination when there is: (1) competent evidence of disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The threshold for finding a link between current disability and service is low. Id.

Here, the Veteran's VA treatment records document a current diagnosis of depression, and he provided several lay statements regarding traumatic in-service incidents which he has indicated could be the cause of his depressive symptoms. However, here there is insufficient competent medical evidence on file for the VA to decide the claim. Thus, the Board finds that the McLendon factors have been met. The AOJ's failure to obtain a VA examination and medical opinion in this case constitutes a pre-decisional duty-to-assist error.

2. Entitlement to service connection for a stomach disability is remanded.

3. Entitlement to service connection for erectile dysfunction is remanded.

The Board maintains entitlement to service connection for a stomach disability and for erectile dysfunction which he asserts are related to hazardous environmental exposures during active duty service.

2. Entitlement to service connection for a stomach disability is remanded.

3. Entitlement to service connection for erectile dysfunction is remanded.

During the pendency of this appeal, the Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) was enacted. Pursuant to the PACT Act, VA is required to schedule an examination and request a medical opinion for certain non-presumptive diseases involving toxic exposure risk activity (TERA). The PACT Act provides that a TERA medical examination/opinion is required in cases of toxic-exposed Veterans where there is a claim for a disability that is not clearly due to an etiology not associated with toxic exposure, and the claim cannot otherwise be granted based on the current evidence of record. See 38 U.S.C. §§ 101(38); 1168, 1710(e)(1). A Veteran can establish participation in a TERA explicitly or implicitly in many ways, including through service in a location presumed associated with toxic exposure. Here, a June 2023 TERA memorandum confirms the Veteran's participation in a TERA. Thus, the AOJ is required to obtain VA medical opinions addressing whether the Veteran's claimed stomach disability and erectile dysfunction are related to his participation in a TERA to satisfy this statutory/regulatory duty. The Board acknowledges that VA opinions were obtained outside of the appeal period for this case and were conclusory in nature.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA mental health examination. The claims file must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis of an acquired psychiatric disability, including, but not limited to, depression.

If the Veteran is not diagnosed with an acquired psychiatric disability, the examiner is asked to specifically address the fact that the Veteran has been diagnosed with depression as shown in VA treatment records.

The examiner is also asked to provide a response to the following:

Is any acquired psychiatric disability at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to service?

2. Obtain addendum opinions from appropriate clinicians regarding whether the Veteran's stomach disability and erectile dysfunction are at least as likely as not related to the synergistic, combined effect of all of the Veteran's toxic exposure risk activities (TERAs).

In providing the requested opinions, consider the Veteran's description of the in-service onset of his claimed disabilities and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board L. Roberts

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.

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