Citation Nr: 1315932 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 08-12 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for multiple sclerosis (MS), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active duty service from July 1967 to December 1970. He served in the Republic of Vietnam (RVN) from December 1967 to December 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). The Board Remanded the claim in May 2010. In November 2012, the Board requested an opinion from a medical expert via the Veterans Health Administration (VHA). A VHA opinion was provided by a neurologist. The Veteran has been notified of the opinion, and his representative has provided a response. FINDINGS OF FACT 1. No hearing loss, as defined for VA purposes, was noted in service, no hearing acuity threshold shift toward diminished hearing was manifested during the Veteran's service or on discharge examination, and medical opinions state that current hearing loss disability is not causally related to the Veteran's active service. 2. MS was not manifested during the Veteran's service, or within the seven-year presumptive period following service, and MS diagnosed more than 30 years after the Veteran's service discharge is not casually related to the Veteran's service or any incident thereof, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for a hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for MS are not met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for two disorders. The duties to assist and notify are addressed below, before assessing the merits of the appeal. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Duty to Notify Under the VCAA, VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified of the criteria for service connection by way of an initial letter sent in June 2006. The letter included information complying with the requirements set forth in Dingess. The Veteran sent correspondence following the January 2007 rating decision which demonstrates that he understood what evidence was lacking that might substantiate his claims. The record demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claims at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). The Veteran does not allege that he has been prejudiced by any lack of notice. No defect in notice is apparent from the record. In this case, the Veteran received pre-adjudicative notice and post-adjudicative notices followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). If any notice deficiency is present in this case, the Board finds that any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2010 Board Remand, followed by readjudication of the claims. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, including in-service examinations of the Veteran's hearing acuity, have been obtained. Private records identified by the Veteran and VA examination records are associated with the claims files. The Veteran has submitted evidence and argument on his own behalf. An opinion from a VHA specialist was sought in 2012 and obtained in February 2013. The Veteran was notified of the request for a VHA opinion and of the opinion received. The Veteran has not identified any additional evidence which might substantiate either claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claims for service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. In a recent decision, the Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the interpretation of the methods of establishing service connection under 38 C.F.R. § 3.303. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The criteria for service connection under § 3.303(a) are satisfied, according to the Federal Circuit, when a three-element test is met. The evidence must establish (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. If a Veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the Veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the Veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. The second way to establish service connection set forth in § 3.303(b) is restricted to chronic diseases defined as such by VA regulation. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and the Veteran's service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. The Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed § 3.309(a) regardless of the point in time when a Veteran's chronic disease is either shown or noted. Id. Under 38 U.S.C.A. § 1112, MS is defined as a chronic disease. A specific presumptive period of seven years is provided by statute for MS. Thus, MS may be presumed to have been incurred in service, if manifest to a degree of ten percent or more within seven years of the date of separation from service. 38 U.S.C.A. § 1112(a)(4); 38 C.F.R. §§ 3.307(a)(3). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of (secondary to) a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Veteran does not contend that MS is secondary to or proximately caused by or aggravated by any service-connected disability, a psychosis. Therefore, further discussion of provisions for service connection on a secondary basis is not necessary. The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). 1. Claim for service connection for hearing loss Governing regulations The determination of whether a Veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. As a preliminary matter, the Board notes that the Veteran's first two audiometric examinations during service were conducted prior to November 1967. Audiology testing was generally conducted under American Standards Association (ASA) standards until November 1, 1967. After that date, the Board ordinarily assumes that any audiometric testing was conducted using current ISO (International Standards Organization) measurements. The Veteran's November 1970 audiometric testing is labeled as conducted under "ISO" standards. The 1966 audiometric testing shows that it was conducted using a MAICO brand audiometer, but there is no labeling of either the 1966 examination or the 1967 examination to show whether ASA or ISO standards were used in measuring the Veteran's hearing acuity thresholds. The regulations which define hearing loss for VA purposes are based on decibel measurement recorded in ISO or ANSI units. 38 C.F.R. § 3.385. Consequently, VA practice is to convert the ASA units to ISO or ANSI units using the following conversion chart: HERTZ (Hz) 500 1000 2000 4000 ADD 15 10 10 5 See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. To facilitate a comparison of the data, the Board has converted the August 1966 and July 1967 service enlistment and induction audiological evaluation findings from ASA to ISO (ANSI) units. In August 1966, the Veteran's hearing was measured as: Hz right ear 500 1000 2000 4000 0 0 0 0 (measured acuty) ADD 15 10 10 5 15 10 10 5 (acuity as converted) Hz left ear 500 1000 2000 4000 0 0 0 0 (measured acuity) ADD 15 10 10 5 15 10 10 5 (acuity as converted) In July 1967, the Veteran's hearing was measured as Hz right ear 500 1000 2000 4000 -5 -5 -5 -5 (measured acuity) ADD 15 10 10 5 10 5 5 0 (acuity as converted) Hz left ear 500 1000 2000 4000 0 0 5 5 (measured acuity) ADD 15 10 10 5 15 10 15 10 (acuity as converted) In November 1970, the Veteran's hearing was measured, in ISO units, as Hz right ear 500 1000 2000 4000 0 -10 -10 0 Hz left ear 500 1000 2000 4000 10 0 0 0 In December 2006, the Veteran had an average 33 decibel (dB) hearing loss in the right ear, and a 41 dB hearing loss in the left, with 100 percent speech recognition in the right ear and 92 percent in the left. The examiner noted that the Veteran's hearing was normal at entrance and at separation, so it was not at least as likely as not that the Veteran's current hearing loss was related to his service. In July 2010, VA examination disclosed diminished hearing acuity, and diminished speech recognition. The examiner specified that a threshold shift is a change in hearing acuity of 10 dB or greater at 2000, 3000, and 4000 Hz, or a shift of greater than 15 dB at a single frequency between 2000 Hz and 4000 Hz. The examiner determined that no threshold shift was shown during the Veteran's service. The examiner concluded that it was less than likely that the Veteran's current hearing loss was related to his service. The examiner further opined that there is no scientific basis for delayed onset of noise-induced hearing loss. Analysis The examiners who conducted the VA examinations did not specifically discuss whether the change in audiometry measurement standards during the period of the Veteran's was considered in reviewing his service treatment records. However, the examiner who conducted the 2010 examination discussed comparison of the Veteran's entrance examination results with his separation examination results and found that there was no threshold shift at any applicable frequency. The examiner provided a specific opinion that no trends which could be linked to hearing loss or hearing changes were present. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Neither VA examiner discussed whether the 1966 and 1967 audiometric examinations were conducted under the ASA unit standard or the ISO unit standard. Therefore, the Board has considered the 1966 and 1967 audiometry reports under both standards to determine if either standard is more favorable to the Veteran than the other, given that there is no specific designation of the standard on the examination reports. The Board has converted to ISO units the 1966 and 1967 audiometry examination reports. These reports disclose that, regardless of the standard used at the time of the 1966 and 1967 examination, there is no threshold shift during the Veteran's service, except to the extent that the Veteran's acuity threshold appear to have improved at some tested levels. The audiometry reports disclose that the Veteran's hearing acuity was at least as good at separation as entrance at each level tested in each ear. The Board concluded that, regardless of whether entrance examination audiologic examination was conducted using ASA (pre-1967 standards) or ISO measurement (standard since November 1967), the Veteran's separation examination results are at least as good as his entrance results at all levels tested, under the facts of this case. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's representative contends that additional development of the medical evidence must be obtained because the examiners who provided the 2006 and 2010 VA audiologic examinations did not specifically discuss the Veteran's exposure to hazardous noise in service. The Veteran's representative notes that the Veteran was a light weapons infantryman, with a high probability of noise exposure. The Board further notes that the Veteran's official Record of Assignments shows that, after his service in Vietnam, he was transferred to Germany in December 1968. In Germany, his assigned military occupational specialty (MOS) was as a punch card operator until August 1969, when he became a programming specialist. He remained in that specialty until his service discharge in December 1970. The examiners based the 2006 and 2010 opinion on the Veteran's three recorded audiometric examinations during service, including at separation. The examiner who conducted the examiner who conducted the 2010 VA examination specifically considered whether acoustic trauma during service could result in later hearing loss disability which was not manifested during service, and concluded that there was no scientific basis for such a finding. Therefore, the argument that the medical evidence is incomplete because there is no specific discussion of the Veteran's hazardous noise exposure in service is inaccurate. The 2010 opinion reflects that the examiner considers the audiometry examination as separation as showing the actual effect on the Veteran's hearing of all in-service noise exposure. The examiner has, in effect, explained why no further discussion of specific noise exposure is required. No further development of the medical evidence is required. The Veteran contends that, following his 1970 service discharge, he has not been exposed to hazardous noise in his occupation or in his recreation. The records reflect that the Veteran has reported being employed as a computer software developer. The Veteran has stated his belief that, since he had no known post-service exposure to hazardous noise, his exposure to noise in service must be the cause of his current hearing loss disability. The Board acknowledges that, even when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. The examiner who conducted the 2010 VA examination specifically addressed the Veteran's contention that in-service exposure to hazardous noise resulted in his later development of hearing loss disability, and stated that scientific knowledge does not support such causation. The Veteran has not furnished lay or medical evidence that he manifested hearing loss until several decades elapsed after his service separation. The Veteran has not provided medical evidence that exposure to hazardous noise might, in his case, be related to the hearing loss disability which developed decades after noise exposure. The Veteran has not provided medical evidence that exposure to hazardous noise is the only known medical cause of hearing loss disability, or any other evidence contrary to the VA opinion rendered in 2010. In the absence of such evidence, the Board finds that the unfavorable 2010 VA opinion is of greater weight and persuasive value than the Veteran's statements as to his belief that in-service noise exposure prior to December 1970 caused his current hearing loss. The claim must be denied. 2. Claim for service connection for MS The Veteran did not report complaints for which a diagnosis of a musculoskeletal disorder or neurologic disorder was diagnosed in service. Service treatment records do not reference MS. They document that the Veteran's musculoskeletal and neurologic systems were described as normal at his August 1966 entrance examination as well as at his November 1970 separation examination. Private treatment records reveal that the Veteran developed difficulty walking in January 2005. Evaluation of the Veteran's gait disturbance led to a diagnosis of a demyelinating disease such as MS in May 2005. Further diagnostic evaluations continued to confirm that diagnosis. Stable relapsing-remitting MS was diagnosed as early as September 2007. The Veteran reported that a brother was diagnosed with MS prior to his death. In a March 2008 letter, A.S., DO, opined that "it is at least as likely as not the Veteran's MS was caused by some environmental exposure he had during service." Dr. S. provided no rationale for his opinion, but the opinion raised an indication that the Veteran's MS might be linked to his service, and the Veteran was afforded VA examination. The Veteran underwent a VA miscellaneous neurological disorders examination in July 2010. MS was diagnosed. The examiner stated that the onset of MS was six years prior to the VA examination. The examiner opined that MS was at least as likely as not related, including through his presumed exposure to Agent Orange, to the Veteran's service. The rationale provided was the examiner's review of the evidence, the examination itself, and clinical experience and expertise. An August 2011 addendum contained the same opinion and rationale for this opinion. In a December 2011 addendum, the examiner noted that there was no evidence of any neurologic problem or MS during service, or within 7 years after service, and the examiner noted that MS is not listed by VA as one of the diseases presumptively associated with exposure to Agent Orange. The examiner stated that there was a typographical error in the previous opinions, and stated those opinions should have stated that MS was not at least as likely as not related service (emphasis added). See December 2011 Addendum Opinion, page 2. However, the VA examinations did not address the likelihood or possibility that the Veteran's MS was directly, rather than presumptively, caused by his presumed exposure to an herbicide agent such as Agent Orange during service. The fact that VA has not recognized a link between MS and such exposure with respect to presumptive service connection is some support for concluding that direct service connection is not warranted, but it is not dispositive. In November 2012, the Board requested a VHA opinion to further clarify and develop the medical evidence. The VHA neurologist who reviewer the claim concluded that the Veteran's exposure to herbicides was not the direct cause of the Veteran's MS. The reviewer based the unfavorable opinion as to direct causation primarily on two facts. First, the reviewer noted that MS was first diagnosed in 2005, some 35 years after the Veteran's December 1970 service discharge. The reviewer opined that this lapse of time made it unlikely that exposure to Agent Orange in service caused the MS. The reviewer also noted that the Veteran has a brother who had MS, suggesting the existence of a genetic predisposition as the cause of the disease. Finally, the reviewer indicated that 356 published articles about Agent Orange were reviewed, but no article indicated that there was a direct causal relationship between Agency Orange and MS. The reviewer further noted that the findings published by the Institute of Medicine demonstrating a lack of a statistical association between Agent Orange and MS, as separate from the review which showed no evidence of a direct causal link. Finally, the reviewer also noted that the March 2008 favorable opinion from Dr. A.S. did not provide a reason for the opinion that the Veteran's MS was as likely as not caused by environmental exposure. The reviewer concluded that Dr. S's statement was an "assumption and most probably represents his personal opinion." The Board finds the opinion of the VHA neurologist to be of greater weight and persuasive value than Dr. S's opinion, because the VA reviewer has set forth a clear rationale, based on several factors, including board research of medical literature. The 2008 opinion rendered by Dr. S. is the only clinical evidence of record favorable to the Veteran's claim. The opinion of Dr. S., and the Veteran's statements on his own behalf, are greatly outweighed by the unfavorable probative evidence. The preponderance of the evidence establishes that the Veteran's MS was not manifested in service, and was not manifested within the applicable seven-year presumptive period for service connection for a chronic disease. MS is not defined as a disease which may be presumed service-connected based on exposure to herbicides. The VA opinion that it is less than likely that the Veteran's MS is directly related to his service outweighs the favorable evidence related to this theory of service connection. The preponderance of the evidence is against the claim under each applicable theory of legal entitlement to service connection. There is no reasonable doubt which may be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The claim must be denied. ORDER The appeal for service connection for hearing loss disability is denied. The appeal for service connection for multiple sclerosis is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs