Citation Nr: 0813885 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-02 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1946 to December 1947 and from June 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. In August 2006 the Board remanded the case for further development. In a subsequent October 2007 decision the RO granted service connection for right ear hearing loss and for tinnitus. Consequently, the only issue remaining on appeal before the Board is entitlement to service connection for left ear hearing loss. FINDING OF FACT It is not established that the veteran's left ear hearing loss is related to service. CONCLUSION OF LAW Left ear hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran has been advised of VA's duties to notify and assist in the development of his claims. An August 2006 letter from the RO explained what the evidence needed to show to substantiate the claim. It also explained that VA was responsible for obtaining relevant records from any federal agency, and that VA would make reasonable efforts to obtain records not held by a federal agency, but that it was the veteran's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. Additionally, letter advised the veteran to submit any evidence in his possession pertaining to his claim and provided notice regarding criteria for rating the disability at issue and effective dates of awards in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although complete VCAA notice was not given prior to the rating on appeal, the appellant had ample opportunity to respond to the VCAA notice letter and to supplement the record after notice was given. He is not prejudiced by any technical notice deficiency that may have occurred along the way, and no further notice is required. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Regarding VA's duty to assist, the RO has obtained the veteran's service medical records, along with available VA and private medical evidence. Additionally, the veteran was provided with VA audiological examinations. The veteran has not identified any additional evidence pertinent to this claim. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background Service medical records reveal that on February 1946 entrance examination hearing was found to be normal with the veteran scoring 15/15 in both the right and left ears. On December 1947 separation examination hearing was also found to be normal with the veteran scoring 15/15 in each ear on both the whispered and spoken voice tests. On April and May 1951 entrance examinations, hearing was again found to be normal with 15/15 on both whispered and spoken voice tests in both ears. Finally, hearing was also noted to be normal on October 1952 separation examination with the veteran scoring 15/15 on the whispered voice test. Private audiograms from April 1977, June 1977, July 1977, September 1977, November 1977, March 1978, October 1978, September 1979 and August 1984 appear to show hearing loss in both ears, generally worse on the left than on the right. An April 1998 private audiogram showed right mild to severe sensorineural hearing loss and left severe sensorineural hearing loss. A February 1999 audiogram appeared to show similar findings and noted 4 percent speech discrimination on the left at 80 DB and 60 percent discrimination of the right at 70 DB. A December 1999 private physician's progress note shows that the veteran was requesting a letter for the VA stating that he had a hearing problem. The veteran reported that he worked in Miramar on the field with the jets in 1951 and 1952, which he believed was the start of his hearing problem; however, when he started college in September of 1952 was the first time that the noticed his decreased hearing. He had a diagnosis of Meniere's disease first made by a Dr. C in 1980. He had been evaluated and had even been scheduled for a labyrinthectomy but then determined that he would prefer to have chemical ablation. Physical examination showed that the tympanic membranes were unremarkable with no perforations. An audiogram showed a mild to severe sensorineural hearing loss on the right and a profound to severe sensorineural hearing loss on the left. Speech discrimination could not be tested on the left and was 92 percent on the right. Tympanograms were type A bilaterally. The diagnostic assessment was left Meniere's disease with right mild to severe sensorineural hearing loss, possibly consistent with a noise-induced hearing loss. A March 2000 letter from a private audiologist indicated that the veteran had a history of noise exposure of approximately two years during his service in the military where he was exposed to the noise of aircrafts. The veteran reported increased difficulties with his hearing since this noise exposure. The audiologist found that the veteran was a candidate for a hearing aid in his right ear. A March 2000 letter from a private physician, Dr. F, indicated that when the veteran was stationed at Miramar Naval Air Station he was exposed to jet aircraft noise. Dr. F could not say for certain that this was the cause of the veteran's hearing problem but he found that it may have been a contributing factor and indicated that the findings of the veteran's hearing test were consistent with noise induced hearing loss. A separate March 2000 letter from private physician, Dr. S, indicated that the veteran's hearing impairment was more likely than not related to aircraft noise exposure while stationed at Miramar air station. In another March 2000 letter, a private audiologist indicated that although the veteran's audiological findings were consistent with noise induced hearing loss, she could not say for sure whether noise exposure was actually the cause. She noted that she was generally unable to objectively state what any particular person's hearing loss may or may not have been caused by. In a March 2000 statement the veteran indicated that when he reported to Miramar in June 1951 he was assigned to the satellite medical dispensary located on the air strip where jets landed and took off. His hearing started to decline during the next year. He asked to return to the main dispensary, however, he remained at the satellite until his discharge in October 1952. Upon his discharge he returned to college. His hearing was so poor that he had to sit if the front rows of all his classes in order to hear. Prior to entering active duty he had had no hearing difficulty. An April 2000 letter from examining physician, Dr. V, indicated that the veteran had a history of noise exposure in service from serving on the ramp around jet aircraft with little to no hearing protection. In 1980 he began to have episodes of strong vertigo, occasionally associated with some hearing changes and tinnitus in the left ear. Dr. V indicated that it was to be noted that the noise-related hearing loss preceded the Meniere's syndrome. Over more recent years the veteran had had fewer attacks although he still got at least 1 per year and also had occasional episodes of lightheadedness. A recent audiogram showed moderate to severe hearing loss in both ears but particularly in the low frequencies in the left ear. Examination of the ears was essentially normal with the veteran having reduced hearing in both ears, particularly in the left. A separate April 2000 letter from Dr. V indicated that while he could not state for certain that the veteran's noise exposure was the cause of his hearing loss, it may have been a contributing factor. Dr. V noted that the findings of the veteran's hearing tests were consistent with noise induced hearing loss. An April 2000 private audiogram was found to indicate asymmetrical sensorineural hearing loss, which was mild to moderate in the right ear and severe in the left ear. There was good speech understanding in the right ear and very poor understanding in the left ear. On May 2000 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 70 70 70 LEFT 90 90 85 75 75 The average puretone thresholds were 64 decibels, right ear, and 81 decibels, left ear. Speech audiometry revealed that speech recognition was 76 percent in the right ear and 0 percent in the left ear. The diagnoses were mild to severe sensorineural hearing loss from 500 to 8000 Hz in the right ear and a severe essentially sensorineural hearing loss from 250 through 8000 Hz in the left ear. The examiner commented that the veteran's hearing loss in the left ear was consistent with the veteran's history of Meniere's disease. An April 2001 VA audiologists opinion, after reviewing the claims folder, indicated that the veteran's hearing loss and tinnitus were more likely unrelated to his military service. The basis for this opinion was that the veteran's hearing was grossly normal at the time of separation from the military and there was nothing in the medical or scientific literature that would support a continuation of noise related hearing loss once one has been removed from the noise. Indeed, loss would have been greatest at or near the time of exposure and then some of the loss would have persisted. There was no evidence in the service medical records of any hearing loss or hearing complaint at any time, including at the time of separation. The evidence that was provided of hearing loss was dated 48 years following service and there was nothing in the current examinations suggestive of noise-induced hearing loss. A January 2003 private examination by an ear, nose and throat (ENT) physician indicated that the veteran had sensorineural hearing loss greater in the left ear than in the right. It was noted that the veteran had extensive noise exposure working at Miramar air base with exposure to jet engines without noise protection from 1951 to 1952 and a history of Meniere's disease first diagnosed in 1980. A January 2003 private audiogram showed mild to severe sensorineural hearing loss with excellent word discrimination in the right ear and severe to profound sensorineural hearing loss with poor word discrimination in the left ear. In a January 2003 statement the veteran's wife indicated that the veteran was having difficulty with his hearing when she and the veteran were married in 1952. There were times, however, when his hearing seemed normal. A March 2003 otorhinolaryngologic evaluation synopsis showed bilateral asymmetric hearing loss. A September 2003 letter from Dr. L indicated that the veteran was seen for the first time by Dr. L for his hearing problem. Dr. L noted that the veteran had worked at the Naval Air Station for several years where he was exposed to increased levels of noise from jet aircraft. After examination, Dr. L reported that his findings were consistent with the veteran's hearing loss being associated with his exposure to above normal levels of noise. In an April 2003 letter the veteran indicated that he did not obtain medical attention for his hearing loss as soon as he was discharged from service in 1992 because he and his family were living on the GI bill and the monthly allowance just covered food and rent. In a December 2003 letter, Dr. D indicated that he had been asked by the veteran to offer an opinion as to the cause of his hearing loss. The veteran reported that he noted the development of his hearing problem in 1952 while he was serving in the military. He also noted that he began wearing a hearing aid in 1998 and that he believed that his hearing became impaired secondary to exposure to jet aircraft noise (which Dr. D noted was not an uncommon event). Dr. D then noted that a recent October 2003 audiometric evaluation had revealed a right-sided mild to severe sensorineural hearing loss and a left ear, profound, rising to severe sensorineural hearing loss with poor speech discrimination. Given the information that he had, Dr. D found that it was likely that the veteran's hearing loss was service-related. On August 2004 Ear Nose and Throat examination done on behalf of VA, audiometry revealed that puretone thresholds (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 65 60 65 LEFT 90 95 90 80 90 The average puretone thresholds were 59 decibels, right ear, and 89 decibels, left ear. The examiner noted that the audiogram was reflective of profound hearing loss in the left ear with 0 percent discrimination at 100 DB and moderately down sloping sensorineural hearing loss in the right ear with 84 percent speech discrimination at 80 DB. The examiner noted that the veteran gave no history of Meniere's disease. Upon looking back at the records, however, he found that the veteran had been diagnosed with Meniere's in the 1970s or early 80s and was found to have left-sided hearing loss secondary to that diagnosis. The examiner also noted that the veteran's separation examination showed that he had a hearing level of about 15 DB in both ears, which was unchanged from a 15 DB hearing level reported in 1947 when he was tested with whispered and spoken voice testing. After examining the veteran and reviewing the claims file the examiner concluded that the veteran had hearing loss in the right ear secondary to presbycusis. The hearing loss in the left ear was deemed secondary to Meniere's disease and was consistent with that. On January 2007 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 75 75 75 LEFT 105 100 105 100 102.5 The average puretone thresholds were 68.75 decibels, right ear, and 102.5 decibels, left ear. Speech audiometry revealed that speech recognition was 78 percent in the right ear and 0 percent in the left ear. The examiner noted that the veteran had mild to severe sensorineural hearing loss in the right ear with fair speech discrimination and profound hearing loss in the left ear with poor speech threshold abilities, which were unable to be tested as the thresholds exceeded the limits of the audiometer for speech presentation. After reviewing the record, the examiner commented that other than the letter from the veteran's spouse, which stated that the veteran had had difficulty with his hearing since 1952, none of the other documentation of record demonstrated a hearing loss while in service or within one year of separation. The existence of hearing loss was not actually documented until 1977 when the veteran presented with a high frequency hearing loss in the left ear and a moderate, fluctuating low frequency hearing loss in the left ear consistent with a diagnosis of Meniere's disease. The hearing loss in the left ear then continued to be progressive with the veteran reporting that his last episode of severe dizziness was one year prior. The examiner concluded that the veteran's right sided hearing loss was as likely not secondary to acoustic trauma and if the veteran's subjective history was accurate and no other noise exposure was experienced outside of the military, than the hearing loss was as likely as not secondary to military noise exposure. The hearing loss in the left ear, however, was secondary to Meniere's disease. III. Law and Regulations Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. To prevail on the question of service connection on the merits, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West; 13 Vet. App. 247, 248 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss disability is defined by regulation. 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of 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 a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis As sensorineural hearing loss is eligible for presumptive service connection, the Board must consider whether service connection for left ear hearing loss is warranted on a direct basis (See 38 C.F.R. § 3.303 and Hickson, 13 Vet. App. 247, 248 (1999) or whether it is warranted on a presumptive basis (38 C.F.R. § 3.307, 3.309). First, considering possible presumptive service connection, the evidence of record does not establish that the veteran had a hearing loss disability by VA standards within one year of separation from service. Hearing loss was deemed to be normal at separation in 1952 and there is no medical evidence within a year of separation indicative of any hearing loss. Both the veteran and his wife have testified that the veteran began having hearing difficulty as early as 1952 and they are competent to provide such testimony. They are not competent, however, to make a medical finding that the veteran had a hearing loss disability by VA standards in 1952 or thereafter. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992), "Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Thus, in the absence of any competent evidence that the veteran had a left ear hearing loss disability by VA standards within one year of his October 1952 separation from service, service connection for left ear hearing loss on a presumptive basis is not warranted. 38 C.F.R. § 3.307, 3.309. Regarding direct service connection, it is reasonably established that the veteran incurred acoustic trauma in service as he was exposed to jet engine noise. The audiological findings of record also establish that the veteran has a current hearing loss disability by VA standards. Thus, the remaining question is whether the veteran's left ear hearing loss is related to service. The record contains conflicting evidence in this regard. Dr. S's March 2000 letter and Dr. D's December 2003 letter both specifically found that the veteran's bilateral hearing loss was more likely than not related to service. Also, a separate September 2003 letter from Dr. L indicated that his findings were consistent with the veteran's hearing loss being associated with his exposure to above normal levels of noise in service. A March 2000 letter from Dr. F indicated that the veteran's noise exposure in service may have been a contributing factor in his bilateral hearing loss and a March 2000 letter from a private audiologist indicated that she could not say whether the veteran's noise exposure caused his hearing loss but that her audiological findings were consistent with noise induced hearing loss. Additionally, an April 2000 letter from Dr. V noted that the veteran's hearing tests were consistent with noise induced hearing loss and also noted that the veteran's reported noise related hearing loss preceded the onset of his Meniere's syndrome. On the other hand, the May 2000 VA audiological evaluation specifically found that the veteran's left ear hearing loss was consistent with his history of Meniere's disease. Also, the April 2001 VA audiologists opinion indicated that the veteran's bilateral hearing loss was more likely unrelated to his military service, noting that the veteran's hearing was found to be normal at separation. Additionally, the August 2004 physician found that the veteran's hearing was unchanged from entry to service to separation and deemed the veteran's left ear hearing loss secondary to Meniere's syndrome. Similarly, the January 2007 VA audiological examiner found that the veteran's hearing loss was secondary to Meniere's disease. The Board notes that there is no indication in the record that any of the practitioners who specifically indicated that the veteran's hearing loss was likely related to service reviewed the claims file. Nor is there any indication that any of these practitioners were aware that the veteran had been diagnosed as having Meniere's disease back in the 1970s or 1980s and that he continued to have the disease. In fact, only one of these practitioners, Dr. D, noted the veteran's history of Meniere's disease and made findings that tend to support a relationship between the veteran's noise exposure in service and his current left ear hearing loss. Dr. D, however, did not express an actual opinion on the likelihood that the veteran's left ear hearing loss was related to service but simply noted that hearing test findings were consistent with noise induced hearing loss. To the contrary, prior to providing their respective opinions, the May 2000, April 2001 and January 2007 practitioners all noted their awareness of the veteran's history of Meniere's disease prior to providing their opinions and the April 2001, and January 2007 practitioners also specifically reviewed the record prior to providing their opinions. Accordingly, given that these latter practitioners had available a full or nearly full history for the veteran when providing their opinions and given that this history included a left inner ear disease known to cause hearing loss (i.e. Meniere's disease), the Board affords these latter opinions more weight. Although Dr. V did note that the veteran reported noise induced hearing loss prior to his Meniere's disease, Dr. V did not actually provide an opinion as to the likelihood of the veteran having left ear noise induced hearing loss. Thus, although Dr. V's opinion does have some probative value, the Board does not attach the same degree of weight to it as to the April 2001 and January 2007 medical opinions, which specifically found that the veteran's left ear hearing loss was less likely than not related to the veteran's noise exposure in service. The Board also notes that it has attached little probative value to the August 2004 physician's opinion because the physician misread the veteran's history by finding that the veteran had a "normal separation audiogram." Even without considering this opinion, however, the Board finds that the April 2001 and January 2007 opinions are clearly entitled to more weight than the opinions indicating a likely connection between current left ear hearing loss and service, and Dr. V's opinion indicating findings merely consistent with noise induced hearing loss, given that the April 2001 and January 2007 opinions specifically considered the veteran's history of Meniere's disease and specifically found that the veteran's left ear hearing loss was related to that Meniere's disease and not to noise exposure in service. Thus, the weight of the evidence is against a finding that the veteran's current left ear hearing loss is related to his military service and direct service connection for left hearing loss is not established. Accordingly, as service connection for left ear hearing loss is not established on a direct or presumptive basis, the preponderance of the evidence is against this claim and it must be denied. ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs