Citation Nr: 1316030	
Decision Date: 05/15/13    Archive Date: 05/29/13

DOCKET NO.  99-22 149A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss, to include as secondary to left ear hearing loss.

2.  Entitlement to a compensable rating for left ear hearing loss.

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

4.  Entitlement to service connection for temporomandibular joint (TMJ) dysfunction.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Esq.



ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from December 1978 to April 1980.  The issues of entitlement to service connection for right ear hearing loss and an increased rating for left ear hearing loss are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court).  The case was originally before the Board on appeal from an August 1998 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the Veteran's right ear hearing loss and a compensable rating for her left ear hearing loss.  In a decision issued in June 2003, the Board upheld the RO's decision.  The Veteran appealed that decision to the Court.

In December 2005, the Court issued a judgment that vacated the June 2003 Board decision and remanded the matters on appeal for readjudication consistent with the instructions outlined in its December 2005 memorandum decision.  In particular, the Court held that, as to the increased rating claim, the Veteran had not been provided a letter that adequately complied with the Veterans Claims Assistance Act of 2000 (VCAA).  The Court further held that such notice error was prejudicial in the absence of any showing to the contrary by the Secretary.  The Secretary appealed the Court's December 2005 memorandum decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit).  While the instant case was pending before the Federal Circuit, that court issued a decision that held that all types of VCAA notice errors were to be presumed prejudicial and that the Secretary had the burden of proving that any notice error was nonprejudicial.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  Accordingly, the Federal Circuit affirmed the Court's December 2005 memorandum decision.  See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007).
The Secretary thereafter filed certiorari petitions that were granted by the United States Supreme Court (Supreme Court) in both the Sanders case and the instant case.  The Supreme Court reversed the Federal Circuit's decision in Sanders v. Nicholson.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (consolidated with Shinseki v. Simmons).  The Supreme Court further noted that there was contradictory evidence as to the prejudicial effect of the VCAA notice error found by the Court in the instant case, and vacated the Federal Circuit's judgment and remanded the case for the Court's reconsideration.  Sanders, 129 S .Ct. at 1708.

In accordance with the Supreme Court's directive, the Federal Circuit remanded the instant case to the Court.  See Simmons v. Shinseki, 365 F. App'x 221 (Fed. Cir. 2009).  The Court then issued a Memorandum decision in November 2009, concluding that its December 2005 memorandum decision had been properly rendered as to the claims of service connection for right ear hearing loss and an increased rating for left ear hearing loss.  The Secretary filed a motion for reconsideration or, in the alternative, for a panel decision to assess the effect that the Supreme Court's decision might have on the disposition of this case.  In April 2010, the case was submitted to a panel, the parties were directed to file supplemental briefs, and the Court heard oral argument in July 2010.  In October 2010, the Court issued a judgment that set aside the June 2003 Board decision and remanded the matters on appeal for further proceedings consistent with the instructions outlined in its September 2010 decision.  In June 2011, the case was remanded for additional development.

The issues of entitlement to service connection for Meniere's disease and for TMJ dysfunction are before the Board on appeal from a July 2011 rating decision of the Winston-Salem, North Carolina VARO.  As the Veteran has now appointed a single representative for all of the issues pending before the Board, the Board shall address the issues together under a single docket number.

The Board sought an advisory medical opinion (received in December 2012) and a clarifying addendum (received in February 2013) from the Veterans Health Administration (VHA)).  The Veteran received copies and opportunity to respond.
The issue of entitlement to a compensable rating for left ear hearing loss is being REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  A hearing loss disability of the right ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; the preponderance of the evidence is against a finding that the Veteran's current right ear hearing loss disability is related to an event, injury, or disease in service; and the preponderance of the evidence is against a finding that the Veteran's current right ear hearing loss disability has been caused or aggravated by any service-connected disability.

2.  Meniere's disease was not manifested in service and is not shown to be related to service or to have been caused or aggravated by a service-connected disability.

3.  TMJ dysfunction was not manifested in service and is not shown to be related to service or to have been caused or aggravated by a service-connected disability.


CONCLUSIONS OF LAW

1.  Service connection for a right ear hearing loss disability is not warranted.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012), 3.310 (as in effect prior to Oct. 10, 2006).

2.  Service connection for Meniere's disease is not warranted.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012), 3.310 (as in effect prior to Oct. 10, 2006).

3.  Service connection for TMJ dysfunction is not warranted.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012), 3.310 (as in effect prior to Oct. 10, 2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran has been advised of VA's duties to notify and assist in the development of her claims.  Letters sent to the Veteran in March 2001, September 2009, and December 2010 provided elements of the required notice including regarding what evidence VA was responsible for providing, and what evidence she was responsible for providing.  This case involves a somewhat unusual history with regard to VCAA notice questions that have been subject to significant appellate adjudication over many years, as discussed in the introduction above.  However, the Board now notes that the Court's most recent Memorandum Decision on this matter, in September 2010, expressly found: "The appellant should be well aware, after seven years of litigation on this case, what evidence is required to substantiate her claim; no additional VCAA notice is required."
Copies of the Veteran's available service treatment records (STRs) are associated with her claims file.  Her pertinent available postservice treatment records, VA and private, have been secured.
This case involves a complex and lengthy history of medical treatment for hearing loss involving a high number of evaluations of the Veteran's hearing acuity.  The Board acknowledges that some of the Veteran's VA treatment records contain indications that not every individual instance of the audiometric testing performed over the years has been transcribed in full detail into the available VA treatment records.  As discussed below, the Board is remanding the issue pertaining to the rating for left ear hearing loss so that all outstanding records of VA audiometric testing data pertinent to that issue may be made available for review prior to final adjudication of the left ear hearing loss rating issue.  The Board has given careful consideration to the question of whether the service connection issues on appeal should likewise be remanded or deferred.  The Board concludes that final adjudication of the service connection issues at this time is appropriate.  The Board notes that the potentially missing VA audiograms / audiometric data reports pertain to a period beginning no earlier than 2003.  These audiograms / audiometric data reports would serve to establish hearing loss disability and its severity; the former is not in dispute (the presence of right ear hearing loss disability as of 2003 is already established by the evidence of record), and the latter is not material to establishing service connection.

The Veteran was afforded pertinent VA examinations including in June 1999, July 2001, August 2002, October 2003, and January 2012.  The Board additionally obtained a VHA advisory medical opinion, with subsequent clarification.  As discussed below, the Board finds that the reports of the examinations and the VHA medical advisory opinion are together adequate for the purposes of this decision.

The Veteran has not been afforded a VA examination specifically with respect to her claim of service connection for TMJ dysfunction, but finds that such examination was not necessary.  An examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4).  Because such requirements were not satisfied as to TMJ dysfunction (only the first requirement of evidence suggesting a current diagnosis has been met), and even the "low threshold" standard as to when an examination is necessary endorsed by the Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), is not met, the Board finds that a VA examination specifically addressing this disability is not necessary.

The Board finds there has been compliance with the instructions of the June 2011 Board remand regarding the right ear hearing loss service connection issue.  The June 2011 remand directed that the Veteran be afforded the opportunity to identify any outstanding medical records and that she be afforded a new VA examination addressing the right ear hearing loss service connection issue.  The Board notes that these actions were completed, and the Board has additionally obtained a VHA advisory opinion in February 2013 (following a request for clarification of the original version of the VHA opinion) to ensure that the etiology questions in the right ear hearing loss issue have been thoroughly and adequately addressed.

The Board also notes that the preceding Court action in this appeal has particularly directed attention to questions of the fulfillment of the duties to notify and assist.  The Board finds that a final Board decision is appropriate at this time, as (1) the Court's September 2010 Memorandum Decision has stated that no further notice is necessary and (2) the Court's prior concerns regarding VA's failure to provide a VA examination and medical opinion addressing the Veteran's hearing loss have been resolved because the Veteran was afforded such examination as recently as in February 2012 and the Board additionally obtained a pertinent VHA medical advisory opinion in February 2013.

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic database storage), with an emphasis on the evidence relevant to this appeal, has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran seeks service connection for right ear hearing loss, Meniere's disease, and TMJ dysfunction.  She previously established service connection for left ear hearing loss and tinnitus.  She contends that her right ear hearing loss was caused or aggravated by her service-connected left ear hearing loss.  She also contends that she has Meniere's disease and TMJ dysfunction due to service or as part of a pathology involving her service-connected left ear hearing loss and service-connected tinnitus.

Service treatment records show that in a March 1978 examination prior to induction, audiometric studies showed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
20
5
5
5
5
LEFT
35
20
35
25
15

In a March 1980 hearing conservation consultation report, it was noted that the Veteran worked in a noisy environment during service, and audiometric examination on her entry to active duty had revealed she had left ear hearing loss that preexisted service.  On March 1980 examination for separation from service, the diagnosis was high and low frequency hearing loss in the left ear.  Audiometric studies showed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
5
5
15
LEFT
35
35
45
30
30

Additionally, the March 1980 separation examination report includes a Report of Medical History showing that the Veteran endorsed having a history of "dizziness or fainting spells," "hearing loss," and "chronic or frequent colds."  She denied having a history of any other symptoms inquired about, include "ear , nose, or throat trouble" or "frequent or severe headache."  The report also documents that the Veteran had a pregnancy that was in the second trimester at that time.

Postservice private medical records include a January 1989 VA audiology evaluation report showing, in pertinent part, "all" right ear audiometry and examination to be "WNL [within normal limits]."  The report shows a diagnosis of "profound" left ear hearing loss featuring "mild sensory loss" and a set of findings that "suggests extreme conduction abnormality, perhaps otosclerosis."  An associated January 1989 report shows that the profound left ear hearing loss was considered due to otosclerosis.

A May 1989 VA audiology evaluation found right ear hearing acuity determined to be "WNL [within normal limits]."  Audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
50
10
10
10
10
LEFT
60
65
65
60
70

An August 1989 private audiology report contains hearing threshold testing data in pict-o-gram format.  The Board observes that the data presented in this report presents no indication which may be reasonably interpreted as showing hearing loss disability of the right ear for VA purposes.  The data represented in this report appears to show right ear hearing thresholds from 10 to 20 decibels in the pertinent frequencies; this evidence provides no basis for finding there was a right ear hearing loss disability for VA purposes at that time.

A September 1989 letter from a clinical audiologist who reported that private audiometric studies in August 1989 showed essentially normal hearing in the right ear and severe to profound hearing loss in the left ear.  It was noted that the left ear hearing loss appeared to be predominantly conductive in nature, but had some sensorineural component.

On March 1998 VA audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
45
45
40
45
40
LEFT
75
75
70
75
85

The examiner noted that the Veteran's right ear hearing was normal in 1989, but currently showed right ear hearing loss with a significant conductive component.  Other VA outpatient reports indicate diagnosis of bilateral mixed-type hearing loss, (greater in the left ear), and further indicate that surgery was recommended.

On VA audiological evaluation in June 1999 (in a VA examination report completed for rating purposes), the Veteran reported that she experienced noise exposure in service launching aircraft while working on the flight line.  She stated that she could not hear unless she was looking at the person speaking.  Audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
65
55
45
45
45
LEFT
85
65
60
70
80
Speech audiometry revealed speech discrimination ability of 96 percent correct in the right ear and 72 percent correct in the left ear.  The diagnosis was moderate to severe mixed hearing loss in the right ear, and moderately-severe to severe mixed hearing loss in the left ear.  The examiner recommended an otologic evaluation because the Veteran's mixed-type hearing loss was suggestive of middle ear pathology.

A report of private audiometric examination in August 2000 shows a diagnosis of moderate, mixed-type right ear hearing loss, and severe mixed-type left ear hearing loss, with absent acoustic reflexes bilaterally.  It was noted that the Veteran needed new hearing aids for both ears.  A report of private audiometric examination in May 2001 again shows a diagnosis of moderate, mixed-type right ear hearing loss, and moderate to severe mixed-type left ear hearing loss.  It was noted that the Veteran's hearing loss was "mostly conductive," involved a "Carhart notch," and that the Veteran opted to not undergo surgery for her hearing loss.

In February 2001, the Board remanded the Veteran's claims for a VA examination to determine the nature and etiology of her right ear hearing loss, and the current severity of her left ear hearing loss.

In a letter received in May 2001, the Veteran's sister reported that the Veteran has difficulty hearing even with the use of hearing aids.  She served as the Veteran's "ears" during phone calls, meetings, and court appearances.  Hearing aids provided the Veteran some hearing ability; but she still relied upon lip reading.  The sister reported that she herself had perfect hearing, as did their four siblings.

On VA audiological evaluation in July 2001 (in a VA examination report performed for rating purposes), the Veteran again expressed that she sustained acoustic trauma in service due exposure to noise from aircraft engines.  She stated that she had to watch faces to understand speech, and had difficulty speaking on the phone.  Audiometry revealed that puretone thresholds, in decibels, were:


HERTZ
500
1000
2000
3000
4000
RIGHT
50
45
45
45
40
LEFT
70
65
65
80
85

Speech audiometry revealed speech discrimination ability of 92 percent correct in the right ear and 74 percent correct in the left ear.  The diagnosis was mild to moderate mixed-type hearing loss in the right ear, and moderately-severe to severe mixed-type hearing loss in the left ear.  The examiner reported that the overall audiometric pattern was consistent with middle ear pathology, "i.e., ossicular fixation, . . . and suggestive of otosclerosis, bilaterally."

On a VA audiological evaluation in May 2002, audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
55
50
45
50
35
LEFT
75
70
65
70
70

Speech audiometry revealed speech discrimination ability of 96 percent correct in the right ear and 88 percent correct in the left ear.

On VA audiological evaluation (in a VA examination report performed for rating purposes) in August 2002, audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
55
50
45
45
35
LEFT
65
65
60
75
85

Speech audiometry revealed speech discrimination ability of 96 percent correct in the right ear and 76 percent correct in the left ear.  The examiner noted that the VA audiological examination in July 2001 had revealed mild to moderate right ear hearing loss, and moderately-severe to severe hearing loss in the left ear.  The examiner opined that the results of VA audiological examination in July 2001 were most consistent with bilateral ossicular fixation and suggestive of otosclerosis.  It was noted that "[r]esults obtained today indicated essentially no change in hearing levels and speech recognition scores as reported on [the July 2001] examination."

VA treatment records show that the Veteran underwent left stapedectomy in November 2002.  A March 2003 audiology report shows that the Veteran described a "major improvement."  A VA audiological evaluation in September 2003 includes data from post-operative audiometric testing performed in March 2003.  The March 2003  audiometry revealed that hearing thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
50
50
45
50
40
LEFT
55
50
65
55
55

The September 2003 report shows that the Veteran was "extremely pleased" with the surgical outcome at that time and was scheduled to have a right stapedectomy performed in October 2003.

On VA audiological evaluation (in a VA examination report performed for rating purposes) in October 2003, audiometry revealed that puretone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
55
50
50
55
40
LEFT
55
55
60
60
70

Speech audiometry revealed speech discrimination ability of 82 percent correct in the right ear and 68 percent correct in the left ear.  The examiner diagnosed "moderate to moderately severe mixed loss" of hearing in the right ear, and "moderately severe to severe mixed loss" of hearing in the left ear.


A November 2009 VA medical report shows a medical impression that "the TMJ is the most likely cause of symptoms" reported at that time to include "clicking in the TMJ joint for several years."

A December 2009 private medical report shows that the Veteran complained of dizziness, headaches, and nausea.  Just prior, a September 2009 VA Otolaryngology report shows that the Veteran had reported "no balance issues" at that time.  An August 2009 VA audiology report shows that the Veteran denied "dizziness/vertigo."

A February 2010 VA audiology consultation report shows that the Veteran underwent "VNG" testing and that "results indicate normal vestibular function."  The authoring physician's assistant commented that the symptom complaints at that time suggested that "diagnosis of Meniere's disease/endolymphatic hydrops is likely," but that "[c]linical correlation is necessary."  The pertinent symptoms raising the possibility of Meniere's at that time were "recurrent dizziness," "feeling pain/pressure in the right ear," "feeling as if her hearing decreases while tinnitus increases," "vision begins to change," and "occasional headaches."  Significantly, the report shows that the Veteran reported that "[t]he ear pain began approximately 2 years ago, but the headaches, eye pain, and 'instability' began in the past 6 months."

Various VA otolaryngology treatment records (from a Dr. Furdyna) dated in 2010 and 2011 show the Veteran reporting various symptom complaints including "new onset dizziness" with a medical impression in February 2010 of "possible" Meniere's disease; in January 2011 the medical impression was "probable" Meniere's disease.

On VA audiological evaluation (in a VA examination report performed for rating purposes) in January 2012, audiometry revealed that puretone thresholds, in decibels, were:


HERTZ
500
1000
2000
3000
4000
RIGHT
25
30
35
35
35
LEFT
70
85
85
75
70

Speech audiometry revealed speech discrimination ability of 100 percent correct in the right ear and 64 percent correct in the left ear.

The January 2012 VA examination report contains a diagnosis of sensorineural hearing loss in the range of 500-4000 Hz in the right ear and mixed hearing loss in the left ear.  The purpose of this examination was focused upon evaluating the current severity of hearing loss, and the examiner did not review the claims-file and declined to provide any opinion regarding the etiology of any hearing loss.  The report did note the Veteran's account that she has a family history of otosclerosis featuring a maternal aunt with that diagnosis.

Elements of the January 2012 VA examination report were deferred to provide an otolaryngologist to address the matter; this was accomplished in February 2012.

A February 2012 VA otolaryngology examination report presents pertinent medical information and expert opinions informed by review of the claims-file.  The examiner noted that the Veteran had in-service noise exposure during duties on the flight line.  Test results were described as showing right ear normal hearing 250-500 Hz, with mild sloping to moderate sensorineural hearing loss in the 1000 to 8000 Hz range; left ear hearing loss was described as severe mixed hearing loss with the bone line reflecting mild to moderately severe loss with additional 20-40 dB overlay.  Word recognition testing results were characterized as excellent (100 percent) in the right ear and poor (36 to 64 percent) in the left ear.  Tympanometry was within normal limits bilaterally.  More detailed testing results adequate for rating purposes were not included in this particular examination report.

The February 2012 VA examiner noted that the Veteran had normal hearing in the right ear per audiometry at the time of military discharge in 1980.  The examiner noted that hearing loss was detected on audiometry in 2002 showing air-bone gaps of 35 dB at 250 and 500 Hz, and 25 dB at 1000 Hz.  The examiner explained that this represents "a conductive hearing loss suggestive of otosclerosis," and that "[t]his type of hearing loss is NOT related to noise exposure."  The examiner notes that otosclerosis is "often hereditary."  The examiner opined that "[t]he condition was not aggravated by her military service obligations" and, rather, that "actually this condition is protective against the type of hearing loss due to noise exposure."  The examiner notes that only left ear hearing loss was noted at the time of military discharge in 1980 and notes that otosclerosis was diagnosed in 2001.  The examiner opined that the post-service otosclerosis is "not related to noise exposure nor was hearing loss aggravated by military service" and that the otosclerosis would only have protected an ear from acoustic trauma by "muffl[ing] the impact of noise trauma to the cochlea."  The examiner explains that the right ear hearing loss is due to otosclerosis that "did not manifest until 20 years after military discharge," and opines that "[i]t is NOT caused by or aggravated by military service."  The examiner noted that the opinions in this report were informed by thorough review of the claims folder and discussion with a Chief of Audiology.

A May 2012 VA medical opinion presents pertinent medical information and expert opinions informed by review of the claims-file.  The May 2012 VA medical opinion states: "It is less likely than not that the Veteran's currently diagnosed Meniere's[sic]/Vestibular Dysfunction is etiologically related (due to, a progression of or otherwise resulting from) to her noted symptoms in service."  The opinion provides a rationale citing that the service treatment records "are silent regarding any pattern of symptoms supporting a pertinent diagnosis during service, and that the Veteran denied "ear trouble" on her Report of Medical History during her separation examination in March 1980.  The opinion also cites the absence of an array of critical symptoms prior to 2010 and states that the dizziness/light-headedness at separation alone is not indicative of Meniere's disease but rather more likely associated with her pregnancy at that time.  Further, the May 2012 VA medical opinion explains that the February 2010 "negative VNG results indicating normal vestibular function" make it unlikely that the Veteran had Meniere's disease since service because such disease "of 25+ years duration would be expected to result in significant abnormal findings on VNG testing, as this condition worsens over the years."  (To the extent that the May 2012 VA medical opinion's rationale cites the absence of tinnitus during service, the Board recognizes that the Veteran's tinnitus has recently been established as a service connected disability; that grant of service connection does not establish any in-service manifestation of tinnitus that would contradict the factual premise of the opinion's rationale.  In any event, the Board has obtained a more recent February 2013 VHA medical advisory opinion which draws the same conclusion with contemplation of the service-connected status of the Veteran's tinnitus.)

The record contains a February 2013 VHA advisory opinion, a revision and clarification of a prior advisory opinion from the same author in accordance with the Board's request for a more adequate response with reference to the complete pertinent contents of the claims file.  The VHA advisory opinion presents and explains two significant conclusions pertinent to this case.  First, the VHA advisory opinion concludes that "it is NOT at least as likely as not that the Veteran's right ear hearing loss has been (a) caused, or (b) aggravated by her service connected left ear hearing loss."  This conclusion is presented with a thorough discussion that additionally explains that the right ear hearing loss is the result of a process independent of the left ear, even if sharing the same diagnosis, and that the right ear hearing loss did not manifest in and was not caused by service.  Second, the VHA advisory opinion concludes that "it is NOT at least as likely as not that the Veteran's Meniere's disease manifested during her military service or is otherwise etiologically linked to her military service."

Regarding the first conclusion, the VHA expert explains that the evidence of record extensively shows that the Veteran has a diagnosis of otosclerosis, which by its nature "is a genetically inherited condition whereby an individual begins to suffer from conductive hearing loss after puberty."  The examiner explains that "this type of hearing loss is not caused by environmental influences, such as noise exposure, toxins or stress."  Depending upon the severity of the associated conductive hearing loss, the VHA expert explains, patients often present with manifestations of otosclerosis-caused hearing loss "in their 30's to 60's."  The condition is described to be "often amenable to surgery, whereby a nonfunctional stapes bone is removed and a prosthesis is placed to facilitate movement of the ossicular chain and to restore hearing."

The VHA expert's discussion of pertinent medical records concerning the Veteran's post-service surgical treatment for otosclerosis directs attention to records including a May 2002 pre-operative VA audiogram, a November 2002 left stapedectomy at a VA medical facility, a March 2003 post-operative VA audiogram, a September 2003 VA progress report, an October 2003 right stapedectomy at a VA medical facility, and a November 2003 post-operative VA audiogram.  The VHA expert notes that the left stapedectomy improved the left conductive hearing loss by 20-25 db across all frequencies, and the right stapedectomy had similar good results with closure of the air-bone gap to normal or borderline normal hearing levels.  The VHA expert notes that pre-operative and post-operative audiograms showed sensorineural hearing (explained to be the category of hearing acuity which may be affected by noise exposure, ototoxins, or Meniere's disease) to be normal ranging to manifesting mild sensorineural hearing loss.  The Veteran's significant conductive hearing loss associated with otosclerosis, however, had been greatly improved by the stapedectomy procedures to normal or borderline normal hearing levels, with both ears having excellent speech discrimination scores for a period; however, subsequently, "it was believed that her left middle ear prosthesis slipped (which is a possible outcome after surgery) and her hearing deteriorated once again to a severe mixed level (again predominantly a conductive hearing loss due to otosclerosis)."

The VHA expert discussed review of "all progress notes and audiograms" in the record.  The analysis of the evidence noted that "audiograms from entrance to service in March 1978 and March 1980 ... show findings typical of otosclerosis in the left ear.  At both exams, the right ear was normal in hearing."  The VHA expert cites the details of the air-bone gap shown in the March 1980 separation examination report.  The VHA expert notes that there is evidence of an overall worsening of hearing in the left ear throughout the two years of service, but the entrance examination report's omission of "bone vs air thresholds" data makes it "impossible to determine which type of hearing loss (conductive or sensorineural) worsened during the service that caused the increased hearing loss in the left ear."  The expert explains that the March 1980 audiogram contains a "bone line" for the left ear showing "sensorineural hearing loss of about 30-40 dB, which may be caused by a number of etiologies that were active during the patient's two years of service."  "[N]oise exposure" is acknowledged as a possible cause of sensorineural hearing loss, but the expert explains that noise exposure "causes higher frequency hearing loss, which the patient did not have on exit exam."  The expert then explains that "[a]nother etiology is otosclerosis, which typically shows a pattern of conductive hearing loss as well as a sensorineural hearing loss at 2000 Hz called 'Carhart's notch', which is the diagnosis most likely from the data available."

The February 2013 VHA expert advisory opinion then addresses "the patient's reported symptoms of lightheadedness and dizziness," and notes that "the only evidence in the 1980's that I can see given the documentation is that the patient checked a box in a self report on discharge from the military on 3/18/80 that states 'Yes' to 'Dizziness or fainting spells.'"  The expert notes that there is no indication of such symptoms in any subsequent hearing loss evaluations though 1989, and explains that such symptoms would likely have been reported if present because a trained audiologist or otolaryngologist would ask about such symptoms in any patient reporting hearing loss.  The VHA expert observes that dizziness or fainting spells are vague symptoms "which can be related a number of conditions in a young woman," and do not significantly indicate manifestation of any specific diagnosis pertinent to this appeal.

The VHA expert notes that the Veteran's right ear hearing acuity remained normal at both entrance to and exit from service, and further remained unchanged by the time of an August 1989 audiogram.  Significantly, the VHA expert explains:

The fact that the left ear had otosclerosis is due to a genetic condition that would be unrelated to external influences experienced during the patient's service.  In no way would the presence of otosclerosis in the left ear potentiate, cause or aggravate the hearing loss in the right ear.  In other words, the hearing loss in each ear was primarily a result of a genetic condition and was caused by an independent process in each ear. Similarly, even if there was a component of noise exposure worsening the patient's left ear hearing loss, that noise exposure would have acted independently in each ear.

The VHA expert further cites the 1989 audiometry results as showing "no sensorineural hearing loss" in the right ear and "no high frequency sensorineural hearing loss" in the left ear as "making noise exposure less likely as a cause of hearing loss."

The VHA expert additionally cites that "the patient had no documented fluctuating sensorineural hearing loss on serial audiograms around the time [of] service," and that there is "only one mention of dizziness and lightheadedness by self report in March 1980," as resulting in an overall record with "no evidence that the patient had Meniere's disease during her time in service."  The expert also describes it as "unlikely" that the Veteran had Meniere's disease "based on a normal VNG in 2010," and also explains that in any event Meniere's disease in one ear would not cause Meniere's disease in the other.

The January 2013 VHA expert opinion then discusses whether Meniere's disease manifested during the Veteran's military service or is otherwise etiologically linked to service.  The expert acknowledges that progress notes starting in 2009 "begin to discuss the patient's tinnitus and dizziness as possibly being related to Meniere's disease," but cautions that "Meniere's disease is a clinical diagnosis that requires a specific constellation of symptoms, timing of tinnitus and duration/type of dizziness that are not described clearly in the notes by Dr. Furdyna [the author of VA otolaryngology treatment records including in 2010 and 2011]."  The VHA expert noted the documented symptoms of "otalgia, TMJ, history of otosclerosis with new onset dizziness per progress note 1/4/10," but observed that "none of [these symptoms] occurred in a pattern consistent with Meniere's disease."  Further, the VHA expert noted that "the patient did not have documented fluctuating sensorineural hearing loss which is typical of Meniere's disease."  Even further, the VHA expert cited that "the patient had a normal vestibuloneurography (VNG) as documented in audiology's progress note dated 2/2/10."  Noting that the only documented mention of dizziness prior to 2009 was the March 1980 self-report in the service separation examination report, and emphasizing that this "was not mentioned in subsequent documentation or history and/or exams that focused on her hearing loss," the VHA expert explained that there is insufficient information "with regard to the length, duration and type of dizziness that the patient experienced" to medically establish that Meniere's was manifested during her military service.

The VHA expert further reasoned that the Veteran's young age at the time of service, considered together with the normal "VNG test performed 2/2/10," presents a chronology that is inconsistent with finding that Meniere's disease manifested during service.  In this regard, the VHA expert explains: "Typically, Meniere's disease lasting 30 years would 'burn out' the affected ear causing fluctuating and gradually worsening and permanent sensorineural hearing loss."  This is to say, "[i]f the patient had indeed had Meniere's since her days in the service, it is unlikely she would have had normal to borderline sensorineural hearing ('bone line') on her audiograms twenty years later," and "[i]t is also unlikely the patient would have normal vestibular function as evidenced by a normal VNG in 2010 if Meniere's disease had actually begun between 1978 and 1980 with an approximate duration of 30 years of disease."  The VHA expert found no report of the episodic "roaring tinnitus and fluctuating sensorineural hearing loss that is part of Meniere's disease in the intervening years," and explained that after a supposed 30 years of Meniere's disease "we would expect a much greater degree of sensorineural hearing loss and lack of stability of her bone lines over repeat audios as well as permanent damage to her vestibular function on VNG in 2010" which "are not seen in this patient's case."  The VHA expert concluded this discussion by noting that Meniere's disease "is caused by endolymphatic hydrops, which is idiopathic in nature" or possibly related to "autoimmune disease," which provide no basis for linking any current "possible Meniere's disease" (emphasis in original) to the Veteran's military service.

Right Ear Hearing Loss, Meniere's Disease, and TMJ Dysfunction

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. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For certain chronic diseases (including organic diseases of the nervous system, to include SNHL), service connection may be established on a presumptive basis if they are manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system).  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

To substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation 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.  See Hickson v. West, 12 Vet. App. 247 (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).

Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  Establishing service connection on a secondary basis requires: (1) Competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc).  Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision.  The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted.  In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred.  As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant.  See Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.

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); 38 C.F.R. § 3.102.  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 appellant 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).

For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies, 500, 1,000, 2,000, 3,000, or 4,000 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 (2012).

The evidence in this case clearly establishes hearing loss disability for VA purposes in the Veteran's right ear during the pendency of this appeal.  Numerous audiology reports, including several VA examination reports prepared for rating purposes, demonstrate this clearly and consistently.  The evidence also indicates that the Veteran has at least possible diagnoses of Meniere's disease and TMJ dysfunction.  For the purposes of this analysis only, the Board accepts that the Veteran has been diagnosed with each disability for which service connection is sought.  What she must still show to establish service connection for each disability is that such is related to her military service and/or was caused or aggravated by a service-connected disability.

Regarding the right ear, to summarize: A right ear hearing loss disability was not manifested in service; sensorineural hearing loss was not manifested to a compensable degree in the first postservice year; and there is no competent evidence that relates the Veteran's right ear hearing loss to service or to any noise exposure therein.  Accordingly, direct service connection for right ear hearing loss (or on a presumptive basis) is not warranted.  There is also no competent evidence that relates the Veteran's right ear hearing loss to her service-connected left ear hearing loss or to any service-connected disability.  Accordingly, secondary service connection for right ear hearing loss is not warranted.

Regarding Meniere's disease, to summarize: Meniere's disease was not diagnosed during service or for many years following service, and there is no competent evidence that relates the Veteran's Meniere's disease to service.  Furthermore, the competent medical evidence in this case clearly indicates that the Veteran's complaints of dizziness and hearing loss in service do not represent an inservice manifestation or onset of Meniere's disease.  The Board finds that there is no credible evidence that any other pertinent symptoms associated with Meniere's disease manifested during service.  Accordingly, direct service connection for Meniere's disease is not warranted.  There is no competent evidence that indicates that the Veteran's Meniere's disease has been caused or aggravated by a service-connected disability.

Regarding TMJ dysfunction, to summarize: TMJ dysfunction was not diagnosed during service or for many years following service; and there is no competent evidence that relates the Veteran's TMJ dysfunction to service.  Furthermore, as further discussed below, the Board finds no credible evidence that the Veteran's TMJ dysfunction symptoms were first manifested during service.  Accordingly, direct service connection for TMJ dysfunction is not warranted.  There is no competent evidence that the Veteran's TMJ dysfunction has been caused or aggravated by any service-connected disability.

The Veteran's primary theory of entitlement to service connection for right ear hearing loss disability is essentially that such disability is secondary to her service-connected left ear hearing loss, or at least that the right ear hearing loss is a manifestation of a common pathology or otherwise shares a common etiology with the service-connected left ear hearing loss (such as in-service acoustic trauma).  However, there is no competent evidence of such linkage.  VA physicians and experts have not found that there is such a relationship, and the Veteran has not submitted any competent (medical) evidence to that effect (or indicated that any such evidence exists).  Most significantly, as discussed in detail above, the February 2012 VA examination report and the February 2013 VHA advisory opinion together present probative competent medical opinions, supported by persuasive rationales, that the right ear hearing loss is the result of a process independent of the left ear (even if the independent process involves the same diagnoses as affect the other ear) and not caused or aggravated by the left ear hearing loss.  The medical opinions also indicate that the right ear hearing loss did not otherwise have onset or causation during military service.  The February 2013 VHA opinion explains that "none of the possible etiologies of hearing loss in the left ear," including any acoustic trauma which may have contributed to left ear hearing loss during service, "would have 'caused' hearing loss in the right ear."  The VHA opinion cites the facts that "the right ear hearing remained normal at both entrance and exit to service and had not changed in an audiogram documented 8/31/89."  Additionally, the February 2012 VA examination report found that the right ear hearing loss was not related to military service, citing the 20 year gap between military service and manifestation of right ear hearing loss.

The Veteran contends that service connection for Meniere's disease is warranted on the basis that such disability began or was caused during service.  However, there is no competent and credible evidence that Meniere's disease was manifested during service or for many years thereafter, or that such disease is otherwise etiologically linked to service.  The medical evidence, including the May 2012 VA medical opinion and the highly probative February 2013 VHA advisory opinion, explains that the Veteran's symptoms in service were not manifestations of Meniere's disease.  These expert medical opinions also explain that the Veteran's recent medical findings (particularly normal vestibular function) weigh significantly against a Meniere's of sufficient duration to have had its onset during service.
The Veteran contends that service connection for TMJ dysfunction is warranted on the basis that such disability was manifested during, or is etiologically linked to, her service.  However, there is no competent and credible evidence that the Veteran's TMJ dysfunction was indeed manifested during service or for many years thereafter, or that TMJ dysfunction is otherwise etiologically linked to her military service.

The statements of the appellant (including assertions made on her behalf by her attorney in an October 2012 written statement) constitute the only evidence of record specifically asserting that her recent Meniere's disease and TMJ dysfunction symptoms were manifested during service and have persisted since that time.  The above-discussed pertinent medical opinions of record acknowledge that some symptoms, specifically hearing loss and dizziness/light-headedness, manifested during service; but they explain that such symptoms alone cannot support a finding that Meniere's disease was manifested at a particular time.  The Veteran contends that a more complete set of Meniere's disease symptoms actually manifested during service.  After a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to her lay-perceivable symptoms (see Barr v. Nicholson, 21 Vet. App. 303 (2007)), her assertions of (1) a broader array of in-service Meniere's disease symptoms than are documented in the STRs and (2) in-service TMJ dysfunction symptoms, are self-serving, compensation-driven, and not credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (While the absence of any corroborating medical evidence supporting a veteran's assertions in and of itself does not render his lay statements incredible, the absence of such evidence may be used to assess his credibility).

Significantly, the Veteran's STRs do not document manifestation of the types of symptoms associated with Meniere's disease in excess of those contemplated by the May 2012 and February 2013 expert medical opinions, and the STRs do not document TMJ dysfunction symptoms (despite significant documentation of the Veteran's various other medical complaints during service).  Furthermore, the Veteran's own statements to medical providers documented in the record contradict the recent assertions of continuity.  She expressly denied any frequent or severe headaches and denied any ear problems other than hearing loss at the time of the March 1980 service separation examination report (strongly suggesting that these elements of the current Meniere's disease symptoms were not manifested during service).  Of great significance is the fact that the February 2010 VA medical record presenting the Veteran's recent report of symptoms associated with Meniere's disease shows that she herself recalled that her ear pain began only approximately 2 years prior, and that her headaches, eye pain, and 'instability' began only 6 months prior.  The VA otolaryngology treatment records from 2010 also show that the Veteran described her dizziness as "new onset" at that time.  Records of medical treatment prior to approximately December 2009 (when a private medical report shows complaints of dizziness and headaches) show no indication of the broader Meniere's disease symptomatology and show that the Veteran denied key symptoms when asked by medical professionals; this includes documentation of medical attention directly focused upon the Veteran's significant ear symptomatology.  A September 2009 VA otolaryngology report shows that the Veteran reported "no balance issues," and an August 2009 VA audiology report notes that she denied "dizziness/vertigo."

Regarding TMJ dysfunction, a September 2009 VA treatment report shows that the Veteran recalled having "had TMJ 20+ years ago" treated with "ortho braces she wore for 2-3 years and used a mouth piece after."  The Board finds it reasonable to presume that such treatment would have been documented in the Veteran's STRs had it taken place during service.  Thus, even accepting that the Veteran recalls treatment for TMJ some time prior to 1989 (20 years prior to 2009), the evidence weighs against finding that the symptoms and treatment she reported occurred during service.

Additionally, the Board notes that the Veteran filed claims in 1980 for service connection for disabilities she believed to have been incurred during service.  Hearing loss and pneumonia were identified by the Veteran as disabilities she perceived to have incurred during service.  The Board finds it reasonable to assume that the Veteran would have included some reference to TMJ dysfunction in her claim at that time had she perceived TMJ dysfunction symptoms during service.  Significantly, the Veteran's claim for benefits in 1980 did not include any reference to the broader array of symptoms consistent with her current assertions concerning the onset of Meniere's disease and TMJ.

The Board finds that contemporaneous evidence featuring medical records and the Veteran's own documented statements concerning her health and symptom history persuasively contradict her assertions in this appeal that the set of key current Meniere's disease symptoms had onset during service and that her TMJ dysfunction had onset during service.  In light of the contrary evidence and self-contradictory sequence of statements by the Veteran, the Board finds her account of in-service onset of her broad Meniere's disease symptoms and in-service onset of her TMJ dysfunction symptoms to be self-serving, inconsistent, and not credible.  Therefore, the Veteran's statements have no probative value in establishing the onset of such symptoms during service.  The probative evidence (including contemporaneous medical records and recent medical opinions with persuasive rationales) weighs against a finding of continuity of the set of Meniere's disease symptoms or a continuity of TMJ dysfunction symptoms beginning during the Veteran's service.

Without competent evidence of a nexus between service and any of the disabilities for which service connection is claimed (right ear hearing loss, Meniere's disease, and TMJ dysfunction), service connection is not warranted for any of the claimed disabilities.  See Hickson, 12 Vet. App. at 253.

The Board has reviewed the Veteran's contentions and lay testimony, as well as the testimony of her sister.  Their statements are to the effect that her right ear hearing loss is related to acoustic trauma in service or to her service-connected left ear hearing loss, and the Veteran has further stated her belief that her right ear hearing loss, Meniere's disease, and TMJ dysfunction are etiologically related to service and/or to each other in such a manner that service connection is warranted for each.  Lay statements cannot by themselves establish that these assertions are so.  Whether the Veteran's claimed disabilities were caused or aggravated by her military service or by a service-connected disability are medical questions requiring medical training and expertise to provide competent evidence.  There is no medical opinion or any other competent evidence of record indicating that any of the claimed disabilities has been caused or aggravated by her military service or any service connected disability.  Significantly, the medical opinions addressing the essential medical questions in this appeal weigh against the Veteran's claims with regard to the right ear hearing loss and the Meniere's disease issues, with no probative contrary medical opinions of record.  There is no competent evidence indicating a link between TMJ dysfunction and service or any service connected disability.  

The Board finds that the above-discussed medical opinions of record, considered together, are adequate and probative evidence pertinent to the right ear hearing loss and Meniere's disease issues on appeal.  The reports present the conclusions of competent medical experts, informed of the pertinent facts through review of the claims file and the Veteran's own account of history in direct interview, with the benefit of direct examination, and the conclusions are explained with adequate rationales.  The Board notes that there is no competent evidence of record that contradicts any of the factual or medical findings presented by the above-discussed medical opinions of record; no evidence of record indicates contrary information about the state of medical knowledge and principles on these pathologies, and no evidence of record presents a competent opinion suggesting that the Veteran's right ear hearing loss and Meniere's disease were actually caused or aggravated by her military service or by a service connected disability.

The Board also finds that the evidence of record is adequate to resolve the TMJ dysfunction issue without development of a new medical opinion because there is no competent and credible evidence of TMJ injury or symptomatology during service and no competent and credible evidence linking a TMJ diagnosis to the Veteran's military service.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board acknowledges that the Veteran's attorney, in a March 2013 written statement, contends that the January 2013 VHA medical advisory opinion is inadequate for the purposes of appellate review in this case.  The attorney contends that the VHA advisory opinion "did not provide a medical explanation for her opinion that [the Veteran]'s hearing loss was genetic and, in fact, noted that she was unsure as to the etiology of the left ear hearing loss."  The attorney then quotes a selection of the out-of-date original VHA advisory opinion prior to the revised February 2013 revision.  The Board finds that the February 2013 VHA medical advisory opinion provides a detailed explanation of the etiological significance of the otosclerosis-related hearing loss and distinguishes it from the etiological profile of sensorineural hearing loss.  Identifying that otosclerosis is by its nature a "genetically inherited condition" is precisely the type of medical fact that the authoring expert is competent to explain on the basis of medical expertise.  The revised February 2013 VHA medical advisory opinion clearly and adequately explains the expert's competent determination that "none of the possible etiologies of hearing loss in the left ear would have 'caused' hearing loss in the right ear," that "[i]n no way would the presence of otosclerosis in the left ear potentiate, cause or aggravate the hearing loss in the right ear," and that "even if there was a component of noise exposure worsening the patient's left ear hearing loss, that noise exposure would have acted independently in each ear."  Also, the evidence of record shows that no right ear hearing loss disability was manifested during service or for many years thereafter.

The Veteran's attorney asserts that the VHA advisory opinion "does not explain how she [the expert] distinguishes which hearing loss is related to otosclerosis and which hearing loss is related to noise exposure, " and that therefore the evidence concerning service connection is in equipoise.  To the contrary, the Board finds that the VHA advisory opinion clearly explains that the right ear hearing loss is not related to service or to left ear hearing loss with express contemplation of each possible etiology.  As the VHA opinion expressly explains why neither any right ear otosclerosis nor any right ear sensorineural hearing loss can be considered medically secondary to the left ear hearing loss or to service, any further attribution of hearing loss to one diagnosis or the other is irrelevant to the question.  In this regard, the Board again notes that the February 2013 VHA opinion explains that "none of the possible etiologies of hearing loss in the left ear," including any acoustic trauma which may have contributed to left ear hearing loss during service, "would have 'caused' hearing loss in the right ear."  The VHA opinion cites the facts that "the right ear hearing remained normal at both entrance and exit to service and had not changed in an audiogram documented 8/31/89."  Additionally, the February 2012 VA examination report found that the right ear hearing loss was not related to military service, citing the 20 year gap between military service and manifestation of right ear hearing loss.  The Board finds that the evidence contains an adequate explanation of findings that thoroughly addresses whether the right ear hearing loss may be related to service or service-connected disability on the basis of any plausible etiology in this case.

The March 2013 brief of the Veteran's attorney goes on to further assert that the VHA "opinion is inadequate because she [the expert] acknowledges two different etiologies for [the Veteran]'s hearing loss but fails to explain why left ear hearing loss was partly created by noise exposure but the right ear hearing loss was caused by only a genetic disability."  The attorney then directly alleges that the opinion "fails to consider whether right ear hearing loss is directly related to service or aggravated by trauma suffered in service."  Once again, the Board finds that the VHA opinion thoroughly explains that the right ear hearing loss is not linked to service on the basis of any of the possible etiologies.  To the extent the attorney requests that consideration be given to the theory that in-service noise exposure may have caused the Veteran's right ear hearing loss, the VHA opinion acknowledges that noise exposure was a possible etiology for a portion of the left ear hearing loss and that "none of the possible etiologies of hearing loss in the left ear ... 'caused' hearing loss in the right ear."  The opinion specifically cites the absence of abnormal hearing changes in the right ear during service or for many years following service.  The Board emphasizes that the shown factual circumstances surrounding the Veteran's development of right ear hearing loss are distinct from those surrounding the development of her service-connected left ear hearing loss.  Left ear hearing loss disability manifested during service, whereas right ear hearing loss disability did not manifest until many years following service.

The Veteran's attorney also asserts that the portion of the February 2013 VHA advisory opinion addressing the Meniere's disease issue "is inadequate because it is based on an inaccurate factual predicate."  Specifically, the attorney asserts that the expert's statement that "there is no report I can find of the episodic roaring tinnitus and fluctuating sensorineural hearing loss that is part of Meniere's disease in the intervening years" is undermined by (1) having "failed to consider that [the Veteran] has been diagnosed with service-connected tinnitus for several years," and (2) that the expert allegedly "described precisely that type of fluctuating sensorineural hearing loss."  Regarding the first point, the Board notes that the VHA expert expressly contemplates that the Veteran has been diagnosed with service-connected tinnitus, and the Board finds no factual inaccuracy in the expert's statement that the documentation of the Veteran's tinnitus nowhere indicates a suggestion of "roaring tinnitus."  Also, no manner of tinnitus is shown from military service until approximately 1999, including in various medical records evaluating hearing complaints; there is no basis for concluding that the VHA expert failed to consider any pertinent information concerning tinnitus in this case.

Regarding the second point (alleging that the VHA expert made a self-contradicting finding of no evidence of fluctuating sensorineural hearing loss of the nature indicative of Meniere's disease during a pertinent intervening period), the Board finds that the Veteran's attorney has substantially misinterpreted the VHA expert's statements.  The Board finds no self-contradiction and no inadequacy.  The pertinent sections of the February 2013 VHA advisory expert opinion, even as quoted by the Veteran's attorney, state (1) that the Veteran "did not have documented fluctuating sensorineural hearing loss" (emphasis added) during a pertinent period, (2) that the Veteran underwent a left stapedectomy in 2002 (the attorney's brief misquotes the date as 2012) "which improved her left conductive hearing loss," (emphasis added) and (3) "baseline and postop audio ... only showed a normal-mild sensorineural hearing loss."  There is no self-contradiction in these statements that convey that the Veteran has not had fluctuating sensorineural hearing loss, had improvement of conductive hearing following surgery, and had relatively consistent sensorineural hearing acuity shown before and after the operation.  The Board further acknowledges that the VHA opinion goes on to note (although not in the text cited by the attorney) that the Veteran's improvement in conductive hearing of the left ear subsequently deteriorated likely because the "prosthesis slipped;" however, again, to describe a specific change in conductive hearing is not to describe a fluctuation in sensorineural hearing.
The Board finds no inadequacies in the February 2013 VHA opinion to undermine the probative value of the medical information presented and the pertinent conclusions drawn.

The Board has reviewed the entirety of the Veteran's VA medical records and finds no further evidence supportive of the Veteran's claim (although there is a substantial quantity of evidence making reference to the disabilities on appeal).  The evidence of record contains no competent indication that the Veteran's right ear hearing loss, Meniere's disease, or TMJ dysfunction has been caused or permanently aggravated by her military service or any service connected disability.

There is simply no competent evidence to support the Veteran's contentions that her right ear hearing loss, Meniere's disease, and/or TMJ dysfunction were caused or aggravated by her military service or a service-connected disability.  The Veteran's own statements relating her disabilities to her military service or to her service-connected left ear hearing loss are not competent evidence, as she is a layperson, and lacks the training to opine regarding medical etiology.  Identifying the cause of an internal pathology such as at issue herein, and/or determining whether one disability causes or permanently aggravates another, are ultimately medical questions not capable of resolution by lay observation.  See Jandreau v. Nicholson, 492 F. 3d. 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court).

Regarding the lay assertions that the Veteran's claimed disabilities are etiologically linked to her military service or to a service-connected disability, the Board acknowledges that the lay statements are competent to testify as to symptoms the Veteran experiences, including the presence of hearing loss, various symptoms of Meniere's disease, and TMJ dysfunction.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  However, as a layperson, the Veteran is not competent to establish an etiological link between service and an internal pathology, nor between two internal pathologies, by her own opinion.  As is explained above, the competent (medical) evidence of record does not support a finding of an etiological link between any claimed disability and either the Veteran's military service directly, or a service-connected disability.

As there is no competent evidence that the Veteran's right ear hearing loss, Meniere's disease, and/or TMJ dysfunction were caused or aggravated by her military service or by any service-connected disability, she has failed to establish a nexus that might permit a grant of service connection for the disabilities at issue in this case.  In light of the foregoing, the Board concludes that the preponderance of the evidence is against each of the Veteran's claims of service connection on appeal.  Accordingly, her appeal in these matters must be denied.


ORDER

Service connection for right ear hearing loss is denied.

Service connection for Meniere's disease is denied.

Service connection for TMJ dysfunction is denied.


REMAND

Regarding the rating for left ear hearing loss, the period of time pertinent to this appeal is more than 15 years in duration.  During the pendency of this appeal, the Veteran has undergone significant VA medical evaluation and treatment for the left ear hearing loss.  Reviewing the record, the Board found that there are detailed audiometric data for some portions of the period on appeal, and  that there are also periods for which there are no detailed audiometric data to review (particularly from 2004 to 2011).  Significantly, however, the claims-file now contains indications that additional VA audiometric testing has been performed, and that data from such testing was recorded, but that the audiometric test results are stored electronically in systems that are not available to the Board for review and have not otherwise been associated with the claims-file.

For instance, an August 2009 VA audiology note clearly indicates that audiometry was performed at that time and describes that the data obtained was "[e]ssentially consistent with 2007 audiogram."  Neither the August 2009 nor the referenced 2007 audiograms or audiometric data reports are available for review in the claims-file.  Notably, the August 2009 audiology report of record states that "Audiogram (VA Form 10-2364) has been scanned and is available for viewing via VISTA imaging."  The Board does not have access to VISTA, and it appears that VA audiometric data pertinent to evaluating the severity of the left ear hearing loss during this appeal are stored therein and not included in the record.  Furthermore VA treatment records from 2003 and 2004, around the time of surgery to treat the Veteran's ear disabilities, contain references suggesting that additional audiometry may have been performed without all of the data included in the claims-file.

The Board observes, in passing, that the available discussion of the otherwise unavailable audiometric data includes characterizations of the left ear hearing loss that suggest potentially greater severity than that shown in the audiograms currently of record (left ear hearing loss described as "severe to profound" at the time of the excluded audiometric data, whereas the most recent audiometric data actually of record characterizes the left ear hearing loss as "severe" in January 2012).  The Board also observes that the Veteran's left ear hearing loss is associated with at least one pathology which has been described in available medical evidence of record as capable of producing fluctuations in severity of hearing loss; it is also a matter of record that the Veteran experienced fluctuations of hearing acuity associated with a surgery to the left ear during the pendency of this appeal.

In sum, review of the claims-file found that at least one pertinent August 2009 audiogram exists in VA's "VISTA" system  but is not available for Board review in the claims-file at this time.  The evidence of record further suggests that there may be additional outstanding pertinent VA audiometric data which should be associated with the record, particularly from the years 2007, 2004, and 2003.  As VA medical records are constructively of record and may be pertinent, they must be sought.  See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following:

1.  The RO should secure for the record any outstanding VA audiometric data generated during the appeal period, in particular any pertinent VA audiometry data available in VA electronic resources but not yet associated with the claims-file or "Virtual VA", to include reports of testing in 2007 and in August 2009.  If reports of audiometry from August 2007 and/or from 2009 are unavailable, it must be so noted in the record, with explanation.  

2.  The RO should review the record and ensure that all development sought is completed.  Then the RO should readjudicate the claim.  If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and her attorney the opportunity to respond.  The case should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the 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).


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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs