Citation Nr: 1324965 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 04-23 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to a rating higher than 30 percent for coronary artery disease. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Veteran, who is the appellant, served on active duty from September 1948 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2002 and in August 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the rating decision in May 2002, the RO denied the application to reopen the claim of service connection for a bilateral hearing loss on grounds that new and material evidence had not been presented. In the rating decision in August 2005, the RO denied higher rating for coronary artery disease. In a decision in August 2009, the Board reopened the claim of service connection for a bilateral hearing loss disability and remanded the claim and the claim for increase. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in July 2013, the Board obtained medical expert opinion from the Veterans Health Administration (VHA) on the claim of service connection for hearing loss. As the VHA opinion is favorable to the claim, the Board is deciding the claim without further procedural development. The claim for increase for coronary artery disease is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT A bilateral hearing loss disability is proximately due to service-connected diabetes mellitus, type 2. CONCLUSION OF LAW A bilateral hearing loss disability is aggravated by service-connected diabetes mellitus, type 2. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.310, 3.385 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for a bilateral hearing loss disability is granted, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § § 1110 and 1131. To establish direct service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of continuous, active service, and a chronic disease, such as sensorineural hearing loss, an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease 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 the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. With audiological examinations, the threshold for normal hearing is from 0 decibels (dB) to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. Service connection may also be granted on a secondary basis by aggravation, that is, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease and not due to the natural progress of the nonservice-connected disease. For secondary service connection, the evidence must show: (1) a current disability; (2) a service-connected disability; and (3) a nexus of a connection between the service-connected disability and the current nonservice-connected disability. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Evidence The Veteran served over twenty years in the Army, including service in Vietnam. His military specialties included aircraft repair chief, helicopter mechanic, multi-engine mechanic, and rotor helicopter mechanic. The service treatment records, including the reports of examinations, contain no complaint, finding, or history of hearing loss other than in January 1956, when the Veteran complained of decreased hearing in the left ear, which was associated with otitis media. Audiograms in September 1963, in May 1964, in September 1966, in April 1968, and in April 1969, show that the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz for each ear did not show impaired hearing, that is, an auditory threshold over 20 decibels at the tested frequencies. Or a hearing loss disability under 38 C.F.R. § 3.385, that is, an auditory threshold of 40 decibels or greater in any of the tested frequencies or an auditory threshold of 26 decibels or greater for at least three of the tested frequencies, including the findings prior to October 31, 1967, which are converted to the current International Standards Organization (ISO) standards. After service, in June 1998, the Veteran complained of hearing loss. VA records show that the Veteran was first prescribed hearing aids in 1998. On VA examination in March 2004, the Veteran gave a history of noise exposure in service while serving with an airborne infantry unit and an aviation unit. He stated that he logged over 750 flight hours serving as a master parachutist. He stated that he rode in and was a mechanic for helicopters during his two years of service in Vietnam. He also described exposure to artillery fire. He stated that hearing protection was used sometimes, but it was not always available. The Veteran also described occupational noise exposure as a truck mechanic. He indicated that hearing protection was not worn. He denied any recreational noise exposure. An audiogram showed that the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 25, 25, 60, 80, and 75, respectively, in the right ear, and 30, 25, 55, 85, and 75, respectively, in the left ear. Speech recognition ability was 80 percent in the right ear and of 56 percent in the left ear. The VA examiner expressed the opinion that it was less likely than not that the in-service noise exposure caused the initial hearing impairment. The VA examiner noted that the Veteran reported a great deal of military noise exposure, but all of the in-service audiological examinations showed hearing within normal limits. In May 2006 on a private audiogram by an otolaryngologist the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz 20, 30, 55, 75, and 80, respectively, in the right ear, and were 40, 45, 55, 65, and 75, respectively, in the left ear. Speech recognition ability was 80 percent in the right ear and of 100 percent in the left ear. The otolaryngologist expressed the opinion that a portion of the Veteran's bilateral neurosensory hearing loss was attributable to noise exposure in service and part due to [service-connected] diabetes mellitus. Service connection has been granted for diabetes mellitus, type 2, for diabetic retinopathy with cataracts, and for diabetic peripheral neuropathy of the lower extremities. In July 2013, the Board obtained a medical expert opinion from the VHA to address the likelihood that bilateral hearing loss was caused or aggravated by service-connected diabetes mellitus, type 2, considering diabetic auditory neuropathy or other neuronal degeneration of the auditory system. In the response, the VHA expert, the Director of the Diabetes & Obesity Program at a VA Medical Center, who is board certified in Internal Medicine and in Diabetes, Metabolism and Endocrinology, noted that there was no reference to hearing loss during service and that the first documentation of hearing loss was in 1998, although it is quite possible that the Veteran had a gradual loss prior to that period. The VHA expert also noted that the Veteran had diabetes mellitus, type 2, which was diagnosed from about 1992 to 1994. The VHA expert stated that it was well known that diabetes mellitus may be present for several years before the actual diagnosis. The VHA expert stated that the Veteran had diabetes several years prior to the diagnosis of hearing loss and that diabetes had been poorly controlled and the Veteran had evidence of other complications such as retinopathy and peripheral neuropathy. The VHA expert explained that the medical literature suggested that hearing loss is more prevalent in patients with diabetes. The VHA expert commented that whether diabetes was an independent risk factor for developing hearing loss was more difficult to ascertain, but a large study of over 5,000 subjects did indicate that diabetes seemed to be an independent risk factor for developing hearing loss, citing Bainbridge, KE, 2008 Ann Intern. Med., and other studies that have collaborated the finding, citing Horikawa, C, JCEM, Jan 2013. The VHA expert stated that whether diabetes actually caused or was just strongly associated with hearing loss, was the most difficult question, as there was scant evidence to indicate either way, but vascular and nerve damage does occur in the ear as it does in the eye (diabetic retinopathy), kidneys (diabetic nephropathy), and feet (diabetic peripheral neuropathy). The VHA expert then expressed the opinion that it was at least as likely as not that bilateral hearing loss was caused by or aggravated by diabetes mellitus, type 2. Analysis The record shows that service connection is in effect for diabetes mellitus, type 2, and complications of diabetes mellitus, namely, diabetic retinopathy with cataracts and diabetic peripheral neuropathy of the lower extremities. The service treatment records show no audiological findings during service that meet the criteria for either impaired hearing, that is, some degree of hearing loss, but not a hearing loss disability under 38 C.F.R. § 3.385, or a hearing loss disability under 38 C.F.R. § 3.385. The First Element of Service Connection After service in March 2004, a VA audiogram showed a bilateral hearing loss disability under 38 C.F.R. § 3.385, which establishes the first element of service connection, namely, a current bilateral hearing loss disability under 38 C.F.R. § 3.385 for either direct or secondary service connection. The Second and Third Elements for Direct Service Connection As for the second element of direct service connection an in-service incurrence of noise exposure, the Veteran is competent to describe impaired hearing, which is within the realm of the Veteran's personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran's statements about hundreds of flight hours and the Veteran's occupational specialty as an aircraft mechanic are credible and are consistent with noise exposure in service. The Veteran's noise exposure in service answers the question of what happened, but does not answer the question of a causal relationship or nexus between the current hearing loss disability and noise exposure in service, the third element for direct service connection. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the third element for direct service connection, on VA examination in March 2004, the VA audiologist, who is qualified through education, training, or experience to offer a medical opinion, expressed the opinion that it was less likely as not that the current hearing loss was due to military noise exposure, because there was normal hearing in service, including on separation, which opposes rather than supports the claim. In May 2006, a private otolaryngologist, who is qualified through education, training, or experience to offer a medical opinion, expressed the opinion that a portion of the Veteran's bilateral neurosensory hearing loss was attributable to in-service noise exposure. As the private otolaryngologist did not further quantify or qualify what "portion" of hearing loss was attributable to in-service noise exposure, the Board is unable to consider and weigh the opinion against the contrary opinion of the VA examiner. For this reason, the Board finds the evidence of a causal relationship or nexus between the current hearing loss disability and noise exposure in service unpersuasive and insufficient to decide the claim on the third element for direct service connection. Rather than return the private medical opinion for clarification, which would further prolong the appeal, which is already in its 11th year, the Board sought a medical expert opinion on a different theory of service connection, that is, secondary service connection as suggested by the private otolaryngologist. The Second and Third Elements for Secondary Service Connection Secondary service connection may be granted for a disability that is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen, additionally, other substantive changes were made. As the claim was filed in 2001 before the other substantive changes were made, only the changes that conform to Allen apply. As for the second element of secondary service connection, namely, a service-connected disability, the second element is established as service connection has been granted for diabetes mellitus, type 2, for diabetic retinopathy with cataracts, and for diabetic peripheral neuropathy of the lower extremities. The remaining question is a nexus of a connection between the service-connected diabetes mellitus, type 2, and the current nonservice-connected bilateral hearing loss disability, the third element for secondary service connection. The probative value or evidentiary weight to attach to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). In the opinion of VHA expert, board certified in Internal Medicine and in Diabetes, Metabolism and Endocrinology, it was at least as likely as not that bilateral hearing loss was caused by or aggravated by diabetes mellitus, type 2. The VHA expert noted that the Veteran had complications of diabetes, namely, retinopathy and peripheral neuropathy. The VHA expert explained that the medical literature suggested that hearing loss is more prevalent in patients with diabetes. While the opinion is not persuasive on the etiological relationship between diabetes mellitus, type 2, and the current nonservice-connected bilateral hearing loss disability, an etiological relationship does not encompass aggravation. On this score, the Board finds that opinion is persuasive as the VHA expert explained that complications of diabetes include vascular and nerve damage, affecting other bodily systems, including the eye, and the ear like the eye is similarly affected. In other words, hearing loss is aggravated by diabetes, that is, proximately due to or the result of diabetes. The Board finds that the favorable opinion of the VHA expert is persuasive evidence in favor of the claim, because the VHA expert reviewed the literature provided a well reasoned rationale, applying medical analysis to the history and significant facts of the case, in order to reach the conclusion submitted in the opinion. As there is no medical opinion against a finding of aggravation and as the favorable evidence of aggravation is persuasive evidence of the third element of secondary service connection, the Veteran prevails on the theory of secondary service connection by aggravation. ORDER Secondary service connection by aggravation for a bilateral hearing loss disability is granted. REMAND The Veteran is seeking a higher rating for coronary artery disease. The Veteran was scheduled for a VA examination in April 2012. Private medical records show that one week before the scheduled examination, the Veteran had a myocardial infarction. Cardiac catheterization showed severe atherosclerotic coronary artery disease. The Veteran did not report for the VA examination. As there is evidence of good cause for not reporting for the VA examination and as there is evidence of a material change in the disability, an examination to determine the current level of disability is needed. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf private medical records, pertaining to treatment of coronary artery disease. 2. Afford the Veteran a VA examination to determine the current level of impairment resulting from service-connected coronary artery disease. The Veteran's file must be made available to the VA examiner for review. 3. After completion of the above, adjudicate the claim for increase. If the claim is denied, furnish the Veteran and his representative a supplemental statement of the case, and the case returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs