Citation Nr: 1305293 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-40 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for cholesteatoma of the left ear, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for hearing loss of the right ear, to include as due to diabetes mellitus, type II. 3. Entitlement to an initial rating higher than 0 percent for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from December 1964 to November 1967, including a tour of duty in Vietnam from January 1967 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, denying the claims currently on appeal. The claims file is currently being handled by the RO in Reno, Nevada. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in December 2008. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In March 2009, the Board denied the claim of entitlement to service connection for a cholesteatoma of the left ear, to include as due to exposure to Agent Orange. The Board also remanded the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the denial of service connection for a left ear cholesteatoma to the United States Court of Appeals for Veterans Claims (Court), and in March 2010, the Court granted a joint motion to remand this issue back to the Board. Regarding the claim seeking service connection for bilateral hearing loss, in January 2010, the RO granted service connection for hearing loss in the left ear. Records that have been recently associated with the claims file show that the Veteran appealed this decision seeking entitlement to a higher rating. On his VA Form 9 dated in March 2011, he requested a Board hearing at the RO. Because the RO granted service connection for left ear hearing loss but has continued to deny service connection for right ear hearing loss, the Board has modified the claim for service connection for bilateral hearing loss as set forth on the first page of this decision. The service connection issues on appeal were subsequently remanded by the Board in June 2010 and September 2011 for further evidentiary development. The issues of entitlement to service connection for cholesteatoma of the left ear, to include as due to exposure to Agent Orange, and an initial compensable rating for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's right ear hearing loss was aggravated by his military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). VA regulations provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as bilateral hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Right Ear Hearing Loss The Veteran contends that he is entitled to service connection for hearing loss of the right ear. According to the Veteran's December 1964 enlistment examination, pure tone thresholds, in decibels (dB), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 20 Although the entrance examination does not specifically indicate which units were used, generally service department records prior to October 31, 1967 used American Standards Association (ASA) units. So, they in turn have to be converted to the current International Standards Organization (ISO) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA measurement at 500 Hertz, 10 decibels to the ASA measurements at 1000 Hertz, 2000 Hertz, and 3000 Hertz, 5 decibels to the ASA measurement at 4000 Hertz, and 10 decibels to the ASA measurement at 6000 Hertz . The Board did this conversion, here, even though it does not specifically note that ASA units were used. The Veteran is not prejudiced by this, given that the outcome of this case results in a grant of benefits. Once these conversions are performed for the December 1964 enlistment examination, the puretone thresholds, in dB and in ISO units are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 25 The Board notes that the Veteran also had a puretone threshold of 40 dB at 6000 Hz at the time of enlistment. When converted into ISO units, this would reflect a puretone threshold of 50 dB at 6000 Hz. The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). As the December 1964 enlistment examination report shows a puretone threshold of 25 dB at 4000 Hz, the Veteran is shown to have hearing loss at entry into service and is not considered sound at entry into service. Thus, the issue with respect to the right ear hearing loss disability is whether it was aggravated by the Veteran's service beyond its normal progression. See 38 C.F.R. § 3.306, Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The record does not contain audiometric findings from the time of separation and the Veteran denied suffering from hearing loss in his report of medical history associated with his November 1967 separation examination. However, on a January 2007 VA audiometric examination, it was noted that the Veteran had a history of military noise exposure due to combat noise and heavy artillery. The Veteran's DD-214 confirms that he was a sharpshooter and that he received the Vietnam Service Medal and the Vietnam Campaign Medal. As the Veteran's claimed exposure to acoustic trauma in service is consistent with his military service in Vietnam, the presumption of aggravation of his right ear hearing loss arises and the determinative issue is whether any increase in disability was beyond the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. The record does not contain evidence of treatment or complaints of right ear hearing loss for several decades after the Veteran's separation from active duty. However, in his original claim of August 2006, the Veteran reported that his hearing loss disability first manifested in August 1970. This would be nearly 3 years after his separation from active duty. The Veteran also testified in December 2008 that he noticed a slight change in his hearing during military service. It is unclear from the medical evidence of record when the Veteran's right hearing loss was first diagnosed. According to a private audiogram report prepared in August 2002, the Veteran had audiometric findings that were consistent with right ear hearing loss. The Veteran also reported at this time that his right ear was his worst ear. An August 2006 VA surgery note also indicates that the Veteran suffered from "long-standing" bilateral hearing loss. A July 2006 VA audiology note confirms a history of bilateral hearing loss as well. The Veteran was subsequently afforded a VA audiometric examination in January 2007. In addition to military noise exposure, the Veteran also described post-service noise exposure through his work as an automobile mechanic and his hobbies involving dune buggies and motorcycles. Pure tone thresholds, in dB, were found to be: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 45 75 85 Speech audiometry revealed a speech recognition ability of 100 percent in the right ear. The examiner diagnosed the Veteran with normal to severe sensory neural hearing loss of the right ear. The examiner also opined that it was less likely as not that the Veteran's hearing manifested during military service. The examiner explained that the Veteran was already showing right ear hearing loss at the time of enlistment in 1964 and that no audiometric findings were recorded upon separation in 1967. No opinion as to aggravation was offered at this time. The Veteran was afforded an additional VA examination in December 2009. It was noted that the Veteran was complaining of hearing loss and that he had been fitted for hearing aids approximately one year earlier. The Veteran again described both military noise exposure and post-service noise exposure (without hearing protection). Pure tone thresholds, in dB, were: HERTZ 500 1000 2000 3000 4000 RIGHT 60 75 80 85 90 Speech audiometry revealed speech recognition ability of 84 percent in the right ear. The examiner concluded that audiological testing revealed a moderately severe sloping to profound sensorineural hearing loss in the right ear. The examiner was of the opinion that the reliability of this examination was poor because speech reception thresholds and pure tone averages for the right ear were not in agreement. The examiner concluded that an opinion regarding the etiology of the right ear hearing loss could not be provided without resort to mere speculation in light of the poor reliability of the audiometric testing. According to a May 2010 VA audiological evaluation, the Veteran suffered from moderate sloping to severe mixed hearing loss of the right ear. The Veteran had severe difficulty understanding others during the evaluation unaided. It was again concluded that speech reception threshold was in poor agreement with puretone averages. The Veteran was afforded another VA audiometric examination in July 2010. Pure tone thresholds, in dB, were found to be: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 85 90 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The examiner diagnosed the Veteran with unilateral right ear sensorineural hearing loss. It was determined that there was good inter-test reliability. The examiner concluded that he could not offer an opinion regarding the etiology of the Veteran's right ear hearing loss without resorting to mere speculation. It was explained that the Veteran had pre-existing hearing loss in the right ear as evidenced by the entrance hearing test. However, the next audiometric data of record was from more than 35 years later. Finally, the Veteran was most recently afforded a VA examination in September 2011. Pure tone thresholds, in dB, were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 85 75 75 Speech audiometry revealed speech recognition ability of 94 percent. The examiner concluded that these test results were not valid for rating purposes. The examiner explained that initial responses showed a clear disagreement with speech responses, including 94 percent word recognition below the admitted pure tone thresholds on the right side. It was noted that reinstruction did improve these levels but agreement between pure tone averages and speech reception were still poor bilaterally. Nonetheless, the examiner concluded that the Veteran did suffer from mixed hearing loss of the right ear. The examiner opined that it was at least as likely as not that this disability was caused by or a result of an event in military service. The examiner explained that there was documentation of mild hearing loss at 6000 Hz in the right ear upon enlistment in 1964. The examiner also noted that because there were no audiometric findings at the time of separation from active duty, it was at least as likely as not that the sensorineural hearing loss component of the Veteran's right ear hearing loss was caused by or aggravated by military service. The examiner concluded that hearing loss preexisted military service, and the 6000 Hz threshold in the right ear was as likely as not aggravated beyond the normal progression in military service, as there was no separation pure tone threshold data to say otherwise. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for right ear hearing loss is warranted. The only probative opinion of record is the one provided in September 2011 as the examiner indicated a review of the Veteran's medical history, assessed the Veteran's present hearing loss, and provided a reasoned opinion with a supporting rationale. The opinion provided in January 2007 did not address the relevant issue of aggravation of the pre-existing hearing loss; and the other reports did not contain an opinion. The September 2011 VA examiner concluded that it was at least as likely as not that this preexisting hearing loss disability was permanently aggravated as a result of military service, resulting in the current sensorineural component of the Veteran's right ear hearing loss. Therefore, it is evident that the Veteran's right ear hearing loss was aggravated beyond the natural progression as a result of military service. The record also contains a statement from the Veteran's wife dated October 2009 that adds further support to the above conclusion. According to her, it was a few years after the Veteran's return from Vietnam that she noticed he was having a bit of trouble hearing. She indicated that this was nothing serious at the time, but that over the years, his hearing progressively worsened. The record contains nothing to call into question the credibility of her assertions. Likewise, the Veteran has provided statements suggesting that he noticed a continued deterioration in his hearing following military service. Therefore, the medical and lay evidence of record suggests that the Veteran had a preexisting right ear hearing loss disability that was permanently aggravated as a result of military service. As a final matter, the Board notes that the Veteran has argued that his service-connected diabetes mellitus is the cause of his right ear hearing loss. The Board does not find this argument to be persuasive. While the record does contain a statement dated May 2011 from a physician with the initials C.H.C. relating the Veteran's hearing loss to his diabetes mellitus, the Board finds this statement to be of little probative value. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A review of Dr. C's statement does not reflect knowledge of the Veteran's preexisting right ear hearing loss disability as of 1964. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As it is unclear how a hearing loss disability from at least 1964 could be caused by a disease diagnosed decades later, the Board does not find this opinion to be persuasive. Nonetheless, the outcome of this claim is still favorable to the Veteran as the evidence of record suggests that it was at least as likely as not that the preexisting right ear hearing loss was aggravated beyond the natural progression as a result of military service. When affording the Veteran the full benefit of the doubt, the Board finds that service connection for right ear hearing loss is warranted. See 38 U.S.C. § 5107(b). The claim is granted. ORDER Service connection for right ear hearing loss is granted. REMAND The Veteran also contends that he is entitled to service connection for cholesteatoma of the left ear, to include as secondary to exposure to Agent Orange. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Initially, the Board notes that the record contains an email from the RO in Reno, Nevada dated May 2012 suggesting that Social Security Administration (SSA) records need to be obtained and incorporated into the claims file. A review of the entire claims file, to include the electronic file (Virtual VA), fails to reflect that SSA records have been requested or incorporated into the record. On remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). In addition, the Veteran asserted in a statement dated August 2012 that there were relevant treatment records from the VA Medical Center (VAMC) in Long Beach, California dated April 2012 and July 2012. A review of the physical and electronic evidence of record fails to reflect that records from the Long Beach, California VAMC for the relevant time period have been incorporated into the record. While VA treatment records from this time period are incorporated with Virtual VA, they are only from the VAMC in Las Vegas, Nevada. As such, VA treatment records from Long Beach, California since April 2012 must be obtained and incorporated into the claims file, either physically or electronically. After the RO granted service connection for left ear hearing loss and assigned a 0 percent rating in a January 2010 rating decision, the Veteran appealed the assigned rating to the Board. On his VA Form 9 that was received in March 2011 the Veteran requested a Board hearing at the RO. As the Veteran has submitted a request for a Travel Board hearing that has not yet been honored, he should be scheduled for a Travel Board hearing, pursuant to 38 C.F.R. § 20.704 (2012). Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. VA treatment records from Long Beach, California, prepared since April 2012, should also be obtained and incorporated into the claims file, either physically or electronically. 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim should be readjudicated based on the entirety of the evidence of record. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 4. With respect to his initial rating claim for left ear hearing loss, schedule the Veteran for the next available videoconference or Travel Board hearing at the RO before a Veterans Law Judge, in accordance with applicable law. A copy of the notice scheduling the hearing should be placed in the claims folder. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs