Citation Nr: 1306883	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO. 12-23 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1. Entitlement to service connection for Meniere's disease.

2. Whether new and material evidence has been received to reopen the claim for service connection for hearing loss.

3. Entitlement to service connection for hearing loss.

4. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus.



REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty from March 1945 to October 1946.

This matter comes before the Board of Veterans' Appeal (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In December 2012, the Veteran testified at a videoconference hearing before the Undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

The Veteran filed an initial claim of service connection for hearing loss and tinnitus in May 2007. A September 2007 rating decision denied the claim and the Veteran was advised of the rating decision in October 2007. Following receipt of the Veteran's Notice of Disagreement, a Statement of the Case (SOC) was issued in July 2008. The Veteran did not submit a Form 9 and the decision became final as to hearing loss and tinnitus. 38 C.F.R. §§ 20.300, 20.302.

In December 2012, the Veteran submitted an August 2012 audiological evaluation directly to the Board with a written statement waiving initial review of this evidence by the RO.

In September 2012, the Veteran raised a new claim of service connection for a benign tumor. This matter is referred to the RO for appropriate action.

A review of the Veteran's electronic ("Virtual VA") paperless claims file does not reflect additional treatment records. ("Virtual VA" is a highly secured electronic repository used to store and review every document involved in the claims process. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. An unappealed September 2007 rating decision denied the claim of service connection for hearing loss and tinnitus and the Veteran was advised of the rating decision in October 2007.

2. The evidence received since the September 2007 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for hearing loss, and raises a reasonable possibility of substantiating the claim of service connection for hearing loss.

3. Evidence submitted since the September 2007 rating decision does not raise a reasonable possibility of substantiating the claim for tinnitus.

4. The Veteran has been diagnosed with bilateral hearing loss and Meniere's disease.

5. The Veteran is competent to report the circumstances of his service and his symptoms.

6. The Veteran does not have hearing loss and Meniere's disease due to any incident of his active duty service.



CONCLUSIONS OF LAW

1. New and material evidence has been received to reopen the claim of service connection for hearing loss. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012).

2. New and material evidence has not been received to reopen the claim of service connection for tinnitus and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012).

3. The Veteran's hearing loss is not due to disease or injury that was incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2012).

4. The Veteran's Meniere's disease is not due to disease or injury that was incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Assist and Notify

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) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

A September 2009 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The VCAA letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.

The Veteran was also notified of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). 

The claims file contains VA treatment records; private treatment records; treatment records from correctional facilities; a VA medical opinion written in September 2010; and lay statements and testimony from the Veteran.

Under the law, VA must provide a medical examination or obtain a medical opinion when such action is necessary to make a decision on the claim. By "necessary" is meant when the evidence of record, including consideration all information and lay or medical evidence including statements of the claimant (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2). 

The Veteran has not been afforded a VA examination in conjunction with his claim. There is no evidence that the Veteran sustained hearing loss or Meniere's disease in service. In fact, the Veteran has submitted a medical opinion which attributes hearing loss to his brain tumor. See generally Morton v. Principi, 3 Vet. App. 508(1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection absent some competent linkage to military service).

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide his claims. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).

New and Material Evidence

The RO denied the Veteran's claim of service connection for hearing loss and tinnitus in a September 2007 rating decision. In October 2007, the Veteran was duly notified of this action and apprised of his appellate rights. He did not complete his appeal of the decision. 38 U.S.C.A. § 7105.

If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion.

For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence of record at the time of the September 2007 rating decision consisted of service treatment records (STRs), service personnel records (SPRs), and a statement from the Veteran dated in May 2007.

Evidence added to the record since September 2007 includes treatment records from the VA medical center in Northampton dated from December 2007 to August 2009; treatment records from the Federal Bureau of Prisons dated from December 1992 to November 2006; informal conference reports; a September 2010 statement from A.K., M.D.; treatment records from the Westhaven VA Healthcare System dated from March 2008 to September 2010; and testimony from the Veteran dated in December 2012. At his December 2012 hearing, the Veteran testified, in part, that he was exposed to loud noise at Edgewood Arsenal for chemical warfare training. (Id. at 3). He stated that he had constant ringing in his ears since service and that he was diagnosed with Meniere's disease 40 or 50 years prior. (Id. at 5-6).

With regards to hearing loss, the September 2010 written statement from the Dr. A.K. indicates that the Veteran is diagnosed as having hearing loss. Because a diagnosis was not of record in September 2007, the statement relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for hearing loss is reopened.

With regards to tinnitus, the September 2007 rating decision denied service connection for tinnitus on the basis of no new and material evidence was submitted. The Veteran has not submitted any evidence, but mere reassertions that his tinnitus is related to service. These are not "new" and the claim is not reopened. See 38 C.F.R. § 3.156 (2012).

Merit of the Claims - Hearing Loss and Meniere's Disease

The Veteran seeks service connection for hearing loss and Meniere's disease. Specifically, the Veteran stated that he sustained hearing loss while in boot camp and during a training in chemical warfare. (See October 2007 Written Statement and August 2012 Form 9). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

Lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza elements under 38 C.F.R. § 3.303(b). Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

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.

A lack of evidence that a claimant exhibited hearing loss during service is not fatal to a claim for service connection. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder).

The Veteran's Enlisted Record and Report of Separation reflects that his military occupational specialty was that of a stock records clerk. The Veteran's STRs reflect normal hearing. Specifically, a March 1945 Report of Physical Examination and Induction reflects hearing on whispered voice test of 15/15 for both ears. A September 1946 Examination of Enlisted Personnel Prior To Discharge, Release from Active Duty or Retirement reflects normal ears, nose, and throat. His hearing on whispered voice test was 15/15 for both ears.

Post-service treatment records show complaints of hearing loss and Meniere's disease decades after he was discharged from active duty. A patient problem list from the correctional facility noted that the Veteran had "otitis? Meniere's" in June 1995, vertigo in May 1996, and Meniere's disease since 1983. A May 2002 psychology service intake screening summary stated that the Veteran reported an ear problem and that within the previous two weeks he had experienced dizziness (from his ear problem). A December 2005 correctional institution record noted pain behind the left ear for seven days. A July 2006 Delta Medix treatment record from Dr. Rabinovich stated that the Veteran had no hearing problems. The Veteran was diagnosed with Meniere's disease in February 2006. A December 2007 VA treatment record noted complaints of hearing loss and Meniere's for the past 20 years. He had four episodes of vertigo with vomiting with the last episode occurring a year in half prior. He stated that during his incarceration he had a hearing test and was provided hearing aids for both ears. 

A March 2008 VA audiology consult revealed pure tone audiometric testing of a moderate slopping to severe sensorineural hearing loss in the right ear and no response in the left ear to 250 Hz to 8000 Hz. His word recognition score in the right ear was 92 percent with recorded speech presented at 86 dB. The left ear was not tested due to lack of response to pure tones.

An April 2008 VA treatment record reflects that the Veteran was fitted for a hearing aid. A June 2008 VA treatment record noted 5 to 10 years of left sided hearing loss, but that the Veteran had good right-sided hearing. The MRI reflected that the Veteran had a 2 cm tumor consistent with vestibular schwannoma. An April 2009 VA treatment record reflected that the Veteran did not have any problems with the right ear since March 2009. He had chronic hearing loss in the left ear since his military service.

A September 2010 written statement from the Veteran's physician A.K. stated that the Veteran had permanent hearing loss due to a benign brain tumor that was not amenable to excision.

There is no medical professional opinion that has linked his current hearing loss and Meniere's disease to any type of acoustic trauma, let alone in-service trauma. In fact, the Veteran's medical opinion relates his condition to his brain tumor. 38 C.F.R. § 3.102. The first medical evidence of Meniere's disease was in 1983, which is more than 37 years after his active duty service. The first medical evidence of hearing loss was in December 2007, which is more than 61 years after service. This is supported by the fact that a July 2006 Delta Medix treatment record from Dr. Rabinovich stated that the Veteran had no hearing problems.

Although the Veteran is competent to report in-service acoustic trauma and discuss the circumstances of his service, he is not competent to render a probative (persuasive) opinion on a medical matter on etiology of hearing loss and Meniere's disease, which require specialized knowledge to diagnose, particularly in light of the Veteran's complex medical history of a brain tumor. 

The Veteran's current lay assertions are not credible for the purpose of establishing in-service acoustic trauma, because there is nothing in the record to substantiate the Veteran's allegation that he sustained such trauma. Moreover there is nothing in his STRs, nor evidence of a continuity of symptomatology referable to having hearing loss and Meniere's disease in service as they are inconsistent with earlier and more probative statements recorded at the time of his separation from service and post-service. Specifically, he has asserted onset of hearing loss since service, but then in other treatment reports per his history that he had 5 to 10 years of left sided hearing loss, but good right-sided hearing and complaints of hearing loss and Meniere's for the past 20 years-both of his statements to practitioners would place the onset of the disabilities many years post-service. (See December 2007 and June 2008 VA treatment records). 

The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). The claims of entitlement to service connection for bilateral hearing loss and Meniere's disease are denied.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for hearing loss is reopened; to this extent only, the appeal is granted.

New and material evidence has not been received which is sufficient to reopen a claim of entitlement to service connection for tinnitus. The claim remains denied.

Service connection for hearing loss is denied.

Service connection for Meniere's disease is denied.





______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs