Citation Nr: 0608713 Decision Date: 03/24/06 Archive Date: 04/04/06 DOCKET NO. 99-20 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for Meniere's disease, including as secondary to service connected hearing loss and tinnitus. REPRESENTATION Appellant represented by: Louis M. DiDonato, Attorney at Law ATTORNEY FOR THE BOARD M. Prem, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This claim was denied by the Board in November 2002. The veteran appealed the claim to the United States Court of Appeals for Veterans Claims (CAVC). In July 2003, the CAVC granted a Joint Motion for Remand. The Board in turn remanded the claim to the RO in December 2003. The veteran filed increased rating claims for hearing loss and tinnitus in November 2004. The RO issued a May 2005 rating decision denying the claims. No notice of disagreement has been filed in regards to these claims. As such, the Board has no jurisdiction with which to adjudicate the claims. FINDINGS OF FACT 1. The veteran sustained one confirmed incident of acoustic trauma while on active service, and such acoustic trauma led to hearing loss and tinnitus. 2. The veteran is not a veteran of combat. 3. The veteran's Meniere's disease is not causally related to his active duty service, nor is it caused or aggravated by his service-connected hearing loss and tinnitus. CONCLUSION OF LAW Meniere's disease was not incurred in or aggravated by any incident of service, nor is it proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Under the VCAA, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, a rating decision was issued in June 1998 and the veteran filed his substantive appeal in October 1999 (prior to the enactment of the VCAA). The RO provided VCAA notice letters in September 2003 and January 2004. These letters effectively notified the appellant of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. The appellant was also notified of what the evidence must show to support his claim of entitlement to service connection for Meniere's disease, as secondary to service connected hearing loss and tinnitus. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless. The contents of the September 2003 and January 2004 notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection, but there has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disability on appeal. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In sum, the claimant has been effectively provided notice as to the essential elements and type of evidence necessary to prevail in his claim. Further, he has ample opportunity to submit evidence and argument in support of his claim, and the record shows he has done so. The Board also notes that the veteran is represented by legal counsel and has therefore had additional assistance from his representative in matters related to his claim. Under the circumstances of this case, the Board concludes that to decide the appeal on the merits at this time would not be prejudicial to the claimant. The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). As will be discussed in detail below, the veteran's service medical records are on file, as are post-service private medical records and VA examinations. There is no indication of relevant, outstanding records which would support the appellant's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the appellant have been fulfilled with respect to the issue on appeal. Service Connection The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). The veteran is currently service connected for hearing loss and tinnitus. The grant of service connection for these conditions was based on the veteran's allegation that he was subjected to excessive noise exposure in the form of an incinerator explosion in September 1966. Although the service medical records did not contain any record of the explosion, a September 1976 lay witness statement by T.E.H. substantiated the veteran's claim. According to T.E.H.'s statement, the explosion occurred when the veteran was burning litter and other debris that he accumulated around the training center. The explosion knocked the veteran down and he remained in a dazed condition. He was taken to the emergency ward of a local hospital, treated, and then released. The incident was not investigated because the injury did not involve hospitalization in excess of 24 hours. The Commanding Officer deemed the cause of the explosion to be aerosol cans that were subjected to excessive heat (the debris from the explosion consisted of several discarded shaving cream and paint cans). T.E.H. believed that the effects of the blast were greater that that which would have occurred from rupturing aerosol cans; but without evidence to support that belief, the incident report was closed. The Board notes that the crux of the veteran's claim for secondary service connection is the presence or absence of a medical nexus that would link the veteran's Meniere's disease to his hearing loss and/or tinnitus. The medical evidence in this case is in conflict and the Board notes that one reason for the various opposing medical opinions is the fact that the history given by the veteran is subject to numerous inconsistencies. At an April 1981 VA examination, the veteran reported that he had sustained his hearing loss when "some dynamite exploded at a close distance." He further claimed that his eardrums were perforated, but then healed spontaneously. A July 1994 outpatient treatment report reveals that the veteran complained of dizziness and nausea of one day's duration. In May 1997, he complained of increased dizzy spells of four months duration. He was diagnosed with Meniere's disease in August 1997 and he filed his claim for service connection that same month. The veteran underwent a VA examination in October 1997. He reported that his hearing loss was incurred in 1966 when he was standing "within feet of a 10 pound [detonation] cord which went off," and which knocked him to the ground. The clinician diagnosed the veteran with Meniere's disease, but noted that there was a question as to whether there is a relationship between the veteran's Meniere's disease, and his hearing loss. She referred the veteran to Dr. R.L.S. for a December 1997 audiological examination. Upon examination, the veteran reported that he was "exposed to heavy weapons fire and jet engine noise" while on active duty, and that he sustained his hearing loss when he was in close proximity to an "explosive device" in 1966. Dr. R.L.S. noted that if the diagnosis of Meniere's disease is accurate, an added hearing loss in the affected ear would be consistent with that diagnosis and directly related, but the condition would not explain the hearing loss in the unaffected ear, nor would it likely account for the major portion of his hearing loss in the affected ear, given it's historical progression. The veteran underwent another VA examination in May 1998. The clinician opined that the veteran had Meniere's disease, but that it was not secondary to his service connected hearing loss and tinnitus. A November 1998 VA medical treatment note reveals that the veteran claimed that he sustained his hearing impairment in a 1966 explosion, after which he was in a "coma for 3 days." The veteran also reported that he had been having symptoms of Meniere's disease (including severe vertigo, blurry eyesight, and severe headaches) for the past 15 years. The Board notes that that would put the onset date of Meniere's disease at approximately 1983 (eleven years prior to the July 1994 report in which the veteran complained of dizziness and nausea of one day's duration). The veteran submitted a May 2000 correspondence from Dr. J.R.A. of Oregon Health Services University. Dr. J.R.A. stated that he first met the veteran a year ago. He also stated that "in reviewing his history, he is noted to have sustained several concussive injuries while in the service." [Emphasis added]. He further stated that "I have no doubt that the tinnitus and hearing loss are in large part due to these concussive injuries (explosions, gunfire, etc.)" [Emphasis added]. He noted that Meniere's disease "is thought in some cases to be due to a concussive injury to the inner ear. In the case of [the veteran] it is at least as likely as not that these concussive injuries also lead to his Meniere's disease." [Emphasis added]. The veteran submitted a September 2000 medical opinion from Dr. C.N.B. in which he opines that the veteran's Meniere's disease is secondary to his service exposure to noise. In support of his opinion, he quoted several medical reports including: the November 1998 report in which the veteran reported being in a coma for three days following the September 1966 explosion and voiced complaints of Meniere's symptoms for approximately 15 years; and Dr. J.R.A.'s statement of the veteran's medical history which included several concussive injuries. In April 2001, the Board requested an independent medical examiner's (IME) opinion. In a June 2001 response, Dr. R.A.G, Professor and Chairman of the Department of Otolaryngology at Wright State University, opined that the degree of medical probability that the appellant's Meniere's disease was caused or aggravated by his service-connected bilateral hearing loss was less than 15 percent. As a predicate to his opinion, Dr. R.A.G. reported that he had reviewed the appellant's claims folder, as well as the other previously submitted medical opinions. His opinion reflects the following points: 1. There was reference to a 1966 explosion caused by the puncture of several aerosol cans in a closed environment, but that the "several histories to multiple explosions and concussions" were "not well documented;" 2. The medical record included a 1967 audiogram detected a low frequency hearing loss pattern, which followed the 1966 explosion, and although its results were not necessarily typical of Meniere's disease, they were also not incompatible with the diagnosis; 3. Episodic vertigo developed in 1993, with nausea and vomiting and fullness of the left ear, and that if the VA examiner who had opined that there was no association between Meniere's disease was not aware of the articles demonstrating the possibility of noise induced hearing loss and Meniere's disease, such would have been a "very logical" conclusion; 4. While the causal relationship among noise induced hearing loss, acoustic trauma, and Meniere's disease was discussed in medical literature, the incidence of patients developing Meniere's disease as a result of such causes was "less than 5%" in the articles referenced; 5. Although the literature reported that it may be months or years before the symptoms of Meniere's disease developed, it would be "extremely unlikely" that the symptoms of vertigo would develop 20 years after the onset of the hearing symptoms; 6. Given that the symptoms of vertigo associated with Meniere's disease developed about 20 years after the documented in-service event, the probability of a causal relationship between the service-connected hearing loss from noise exposure and Meniere's disease was "quite low." The veteran submitted another correspondence from Dr. C.N.B. in September 2001. In it, Dr. C.N.B. stated that Dr. R.A.G.'s opinion was inadequate in part because it failed to how he arrived at the conclusion that there is less than a 15% likelihood that the veteran's Meniere's disease is related to his hearing loss and tinnitus; it does not explain why his (Dr. C.N.B.'s) opinion is wrong; it does not provide an alternative cause of the veteran's Meniere's disease; and it does not refute Dr. C.N.B.'s medical literature sources. Dr. C.N.B. reiterated his opinion that the veteran's Meniere's disease is secondary to his hearing loss and tinnitus. The veteran also submitted an August 2004 correspondence from Dr. D.L.R. in which he states in toto that "[The veteran] suffered head trauma while in military service. He now suffers from Meniere's disease. It is documented that Meniere's disease can be caused by head trauma. While it can never be proven that his Meniere's is due to that head trauma, it is a very real possibility. Thank you for your consideration of this fact regarding his disability." Analysis As noted above, the Board recognizes that there is a great deal of conflict among the various medical opinions. It appears that one reason for the variety of medical opinions is the apparently inconsistent histories provided by the veteran at various different examinations. The veteran's claims file contains a record of a single explosion occurring in September 1966. The explosion knocked the veteran down and he remained in a dazed condition. He was taken to the emergency ward of a local hospital, treated, and then released (in fewer than 24 hours). The veteran has erroneously told medical examiners that he sustained several concussive injuries, including heavy gunfire and jet engine noise; having been in a coma for three days; and having suffered from symptoms of Meniere's disease since approximately 1983. The appellant's service records indicate that he served as a motor vehicle operator. There can be no doubt in this regard that the veteran may well have involved some exposure to engine noises of undeterminable severity, but although the veteran served in Vietnam, there is absolutely no evidence that he engaged in combat with the enemy. Cf. 38 U.S.C.A. § 1154(b) (Providing in substance that in the case of veterans of combat, VA must accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardship of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service). The appellant is not a combat veteran, and for the Board to presume either the severity of noise exposure or other incidents of audio trauma would amount to pure speculation. Even if the veteran could be deemed to be one who engaged in combat with the enemy, his evidentiary assertions are not entitled to the presumptions provided in 38 U.S.C.A. § 1154(b) because his evidentiary assertions concerning events in service, standing by themselves and without consideration of any other evidence, contain material contradictions as to the explosive trauma and the alleged "coma" for three days. Thus, they are not credible or "satisfactory" and the presumption is not for application. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that the credibility of the claimant's evidentiary assertions concerning both events in service and the history of the disability post service is critical because of the obvious importance of these factors in the formation of the various medical opinions that have been obtained relative to the claim at issue. To the extent that the appellant has conveyed to medical examiners these material misrepresentations of his medical history and those physicians have relied upon such misrepresentations in formulating their opinions, the probative weight of the opinions is effectively diminished. See Boggs v. West, 11 Vet. App. 334, 340 (1998); Swann v. Brown, 5 Vet. App. 229, 233 (1993). In other words, the mere endorsement of a physician can not restore or enhance the probative value of a medical opinion founded upon inaccurate premises. In this case, the medical clinician who conducted the May 1998 VA examination, and Dr. R.A.G. have opined that the veteran's Meniere's disease is less likely than not related to his service connected hearing loss and tinnitus. Drs. C.N.B. and J.R.A. have opined that it is as likely as not that the veteran's Meniere's disease is secondary to his hearing loss and tinnitus. Finally, Dr. D.L.R. has opined that while it cannot be proven that the veteran's Meniere's disease was caused by head trauma, "it is a very real possibility." The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. There are substantial and significant factors that favor the valuation of the Dr. R.A.G. over the opinions of Drs. C.N.B, J.R.A., and D.L.R. The Board notes that Dr. J.R.A.'s May 2000 medical opinion was based in part on a history completely unsupported by the evidence. Although Dr. J.R.A. indicated that he reviewed the veteran's history, he states on numerous occasions that the veteran sustained several concussive injuries while in the service. He also stated that "I have no doubt that the tinnitus and hearing loss are in large part due to these concussive injuries (explosions, gunfire, etc.)" [Emphasis added]. The Board notes that there is absolutely no evidence in the service medical records of several concussive injuries. In fact, the service medical records do not even contain a record of the single September 1966 explosion. Service connection was granted based on the eye witness testimony of T.E.H., which was provided in September 1976 (ten years after the incident). While T.E.H.'s is a credible and unbiased account of the single September 1966 explosion, he made no reference to any other concussive injuries sustained by the veteran. Moreover, there is no evidence that the veteran was a combat veteran or that he was exposed to heavy gunfire. Finally, Dr. J.R.A. noted that Meniere's disease "is thought in some cases to be due to a concussive injury to the inner ear." [Emphasis added]. Since he acknowledges that Meniere's disease is only thought to be caused by concussive injuries "in some cases" (as opposed to "most cases" or "all cases"), he must provide a rationale as to why, in the veteran's case, it was more likely than not caused by the September 1966 explosion. He failed to offer such a rationale. The opinion of Dr. C.N.B. suffers from many of the same defects. The bulk of his September 2000 medical report is simply a list of quotations extracted from other medical reports, without explanation of their significance. Many of these quotations simply document the veteran's hearing loss. Some of them simply note that head trauma is a possible cause of Meniere's disease. One of them references the "possibility" that the veteran's Meniere's disease is secondary to trauma sustained in an explosion. Many of the quotations contain the same erroneous information contained in Dr. J.R.A.'s medical report (that the veteran was in a coma for three days following the explosion; that he had been having symptoms of Meniere's disease since approximately 1983; and that he had sustained several concussive injuries including gunfire). He opined that "The literature supports a direct causal link between concussive injuries and Meniere's disease." The Board notes that a general causal relationship between concussive injuries and Meniere's disease is not in dispute. The issue is whether this veteran's Meniere's disease was caused by his single concussive injury. In regards to this veteran and his history, Dr. C.N.B.'s opinions contain no indication that he recognized or attempted to distinguish between the actual history of the disability and the noncredible evidentiary assertions of the claimant. Indeed, his reports on their face appear to accept as valid the claimant's noncredible evidentiary assertions. Therefore, his opinions are founded upon false premises and thus are not entitled to any probative weight. Finally, the August 2004 medical opinion of Dr. D.L.R. is not at all probative. There is no indication that Dr. D.L.R. reviewed the veteran's medical records. There is no indication as to his area of expertise. All he seems to know is that the veteran sustained head trauma while in the military; he now suffers from Meniere's disease; and Meniere's disease "can be caused by head trauma" [Emphasis added]. Like Dr. C.N.B.'s opinion, Dr. D.L.R. only notes a general causal relationship between concussive injuries and Meniere's disease. It fails to provide a rationale that supports his opinion that this veteran's Meniere's disease was caused by his single concussive injury. To the contrary, Dr. R.A.G.'s opinion is highly probative in several respects. First, it evidences that he was aware of the veteran's inconsistent statements concerning his medical history. The physician also identified the date of onset of vertigo in 1993, which is far more consistent with the initial and credible reports of medical history from the veteran rather than the later representations that it began in 1983 or 1984. Dr. R.A.G. is also shown to have considered the other opinions of record, as noted by his observation that the connection among acoustic trauma, hearing loss, and Meniere's disease is noted and accepted. However, the physician's observation that the development of Meniere's disease and its symptoms not occurring for approximately 20 years is highly relevant, as it cogently and comprehensively explains the significance of the medical treatise evidence and the other medical opinions of record. The Board finds Dr. R.A.G.'s opinion to thus be the most informed and most directly responsive to the inquiry in this matter. His opinion is founded upon the most accurate history of the disability, and the most balanced in its explanation of the development of the appellant's disorder. Most importantly, Dr. R.A.G. has clarified that while there is certainly a connection among audio trauma, hearing loss, and Meniere's disease, the passage of time between the trauma and the development of the disorder in question renders it unlikely that the disorder is traceable to any incident of service. He reported that in his expert opinion, "the medical probability that the veteran's Meniere's disease was caused or aggravated by his service connected hearing loss is between 10 and 15%." For reasons explained above, the Board finds that the opinion by Dr. R.A.G. should be afforded considerable weight. In this case, an accurate command of the correct history is of vastly greater importance than any other factor shown by the record. The Board therefore finds that no further pursuit of medical texts or treatises is warranted because the current record contains evidence that is dispositive and founded precisely upon the facts of this matter. There is no reasonable possibility that a general text of treatise would warrant a different outcome on this record. The preponderance of the evidence is against the claim and thus the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for Meniere's disease, including as secondary to service connected hearing loss and tinnitus, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs