Citation Nr: 1235366	
Decision Date: 10/12/12    Archive Date: 10/17/12

DOCKET NO.  10-14 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for labyrinthitis, claimed as secondary to bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1944 to October 1946.
This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO, inter alia, denied service connection for labyrinthitis.  In May 2009, the Veteran filed a notice of disagreement (NOD).  The RO issued a statement of the case (SOC) in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010.

In July 2010, the Veteran testified during a hearing before a Decision Review Officer at the RO; a transcript of the hearing is of record.

In September 2012, a Deputy Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2011).


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim decided herein has been accomplished. 

2.  Although the Veteran has complained of gait problems, to include wobbliness, and dizziness, there is no competent evidence or opinion that the Veteran currently has, or ever has had, labyrinthitis, and the only medical opinion on this point weighs against the claim.



CONCLUSION OF LAW

The criteria for service connection for labyrinthitis, to include as secondary to service-connected hearing loss, are not met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, a September 2008 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates-in the event service connection is granted-as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  The April 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter.  Hence, the September 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of service treatments records (STRs), private medical records, and the reports of various VA examinations.  Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf.  

The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.  The Board finds that no further RO action on this matter, prior to appellate consideration, is required.

In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

The Veteran claims that he is entitled to service connection for labyrinthitis, a disorder of the inner ear, due to service-connected hearing loss.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury.  That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis.  See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006).

Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for labyrinthitis, to include as secondary to hearing loss, is not warranted.

In August 2008, the Veteran filed a claim for service connection for labyrinthitis simultaneously with a claim for hearing loss.  In December 2010, the RO granted service connection for hearing loss, effective August 15, 2008.  

The Veteran's STRs contain no reference to labyrinthitis or any other ear disorder.  In his initial claim, the Veteran alleged that labyrinthitis first manifested around 1975.  The Veteran has also submitted numerous personal statements regarding his experiences during service, including exposure to loud aircraft noise during World War II, and has asserted that this was the only source of serious noise exposure that he has experienced in his lifetime.  The Veteran has also submitted several articles regarding noise exposure and hearing loss.  However, none of these statements or articles directly address labyrinthitis or refer to any symptoms specific to labyrinthitis, but rather appear to have been submitted solely in connection with the claim for service connection for hearing loss.  During a July 2010 RO hearing, the Veteran discussed in more detail his history of noise exposure, but did not discuss any symptoms, treatment, or diagnoses relating to labyrinthitis.  

The Veteran has also submitted numerous reports from medical professionals, including a May 1996 audiology examination report, a September 2002 audiology examination report, an August 2008 physician's letter, a July 2010 hearing instrument specialist's letter, and other private medical records dating from June 1988 to February 2006.  However, these records are entirely silent for any complaint, finding, or diagnosis of labyrinthitis.  An October 1997 evaluation report shows that the Veteran complained of ataxia and altered gait, but his physician found this to be due to cerebral and cerebellar atrophy, possibly related to a subdural hematoma that the Veteran experienced in 1995.

In April 2009, the Veteran was afforded a VA audiology examination at the Phoenix VA Medical Center (VAMC).  However, the examiner was asked only to discuss the Veteran's hearing loss, and no evaluation for labyrinthitis was performed.  

In July 2010, the Veteran underwent a VA ear disease examination at the Phoenix VAMC.  The examiner reviewed the Veteran's claims file and medical records, and discussed symptoms and history with the Veteran.  The Veteran reported that he was a "wobbler" while walking and had to be careful when turning suddenly, and that he had experienced these symptoms for about 15 years.  He stated that he sometimes used a cane and denied any true vertigo or vertigo in a sitting or supine position.  The examiner noted that the Veteran did exhibit signs of gait ataxia, but that there was no deformity of the auricle, normal external canal, no aural polyps, normal tympanic membrane, normal mastoids, no complications of ear disease, and no evidence of middle or inner ear infection.  The examiner ultimately opined that, "[h]istory and exam today did not reveal a vestibular disease including but not exclusive of labyrinthitis."

The above-cited evidence clearly reveals that the record includes no competent medical evidence or opinion indicating that the Veteran currently has, or ever has had, labyrinthitis,  The claims file includes years of private records showing treatment for various disorders, none of which reflect any diagnosis for labyrinthitis.  Furthermore, in the only medical opinion to directly address this point, the July 2010 VA ear disease examiner confirmed that there was no evidence of vestibular disease, to include labyrinthitis, by history or examination.  This opinion was clearly based on examination of the Veteran, full consideration of his  documented medical history and his assertions-to include complaints of gait impairment and dizziness, and is consistent with other evidence of record; hence, the Board accepts the opinion as persuasive evidence on the current disability question.   See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  Significantly, neither  the Veteran nor his representative has presented or identified any contrary evidence or opinion-i.e., one that reflects any actual diagnosis of labyrinthitis.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. §§ 1110, 1131; see also 38 C.F.R. § 3.310.  Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection-on any basis.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 

In addition to the medical evidence, the Board has considered the oral and written assertions of the Veteran and his representative.  However, to the extent that any such assertions are being advanced to establish a current diagnosis of labyrinthitis, or that there exists a medical nexus between labyrinthitis and the Veteran's service-connected hearing loss, such evidence provides no basis for allowance of the claim.  Questions of medical diagnosis and causation of disabilities not capable of lay observation or other sensory perception are within the province of medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  As laypersons without the appropriate medical training or expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter.  See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  Hence, lay assertions as either the nature or etiology of the Veteran's complaints have no probative value.

For all the foregoing reasons, the Board finds that the claim for service connection for labyrinthitis must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against this claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990)..


ORDER

Service connection for labyrinthitis, to include as secondary to hearing loss, is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs