Citation Nr: 1325130 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-37 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an inner ear disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1953 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board remanded the case for additional development in May 2013. The Veteran submitted additional evidence in support of his claim in July 2013, but waived agency or original jurisdiction (AOJ) review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT An inner ear disability was not manifest during active service, an organic disease of the nervous system was not manifest to a degree of 10 percent or more within one year of service discharge, an inner ear disability is not shown to have developed as a result of an established event, injury, or disease during active service, and an inner ear disability is not shown to have developed as a result of or to have been permanently aggravated by a service-connected disability. CONCLUSION OF LAW An inner ear disability was not incurred in or aggravated by service and is not proximately due a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in February 2010. The Board finds that the notice requirements have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records; VA treatment and examination reports; VA electronic records; private treatment records and medical opinions; lay statements from the Veteran's spouse and son; and the Veteran's statements and testimony in support of his claim. The Board notes the Veteran provided information he obtained from the National Personnel Records Center indicating that the service records necessary to answer his inquiry were not in their files and may have been lost due to a fire in 1973. However, a review of the available record shows that his service medical records were transferred to VA in October 1956. As the Veteran has not identified any pertinent service record he believes is missing from his file, the Board finds no additional efforts to obtain records are required. The Veteran provided additional private treatment records subsequent to his hearing in April 2013 and the available record indicates copies of all specific VA and non-VA treatment records identified have been obtained. There is no evidence that any additional pertinent records exist which are necessary for an adequate determination. In correspondence dated in July 2013 the Veteran's representative also reported that there was no additional evidence to submit in support of the appeal. The development requested by the Board in May 2013 has also been substantially completed. The Board finds that further attempts to obtain additional evidence would be futile. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The June 2013 VA medical opinions obtained are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The examiner is shown to have adequately considered the evidence concerning the Veteran's noise exposure and balance problem symptom manifestation. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based upon a review of the provided VA examination report the Board finds no merit to the Veteran's contention that the examiner only performed a cursory examination. The provided report is shown to have been provided after an in-person examination and a review of the claims file. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumptions are rebuttable by affirmative evidence to the contrary. Even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may be established by evidence demonstrating that the disease was in fact incurred during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record includes service medical records with no indication of complaint, treatment, or diagnosis of an inner ear disability. The Veteran's August 1956 separation examination report noting a normal clinical evaluation of the ears, eardrum, and neurologic system. The examiner noted there were no present defects or diagnoses. A physical profile (PULHES) was provided as 111111. The PULHES profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The P stands for physical capacity or stamina, the U stand for upper extremities, the L stand for lower extremities, the H stand for the condition of hearing and the ears, the E stands for the eyes, and the S stands for psychiatric condition. Odiorne v. Principi, 3 Vet. App. 456 (1992). In his August 1956 report of medical history the Veteran denied having or having ever had dizziness or fainting spells, ear trouble, or running ears. Private medical records dated in October 2004 from J.L.B., M.D., noted the Veteran was seen for follow up after videoenystagmography (VNG) testing which showed multiple positional episodes of nystagmus. It was also noted he had difficulty with gaze pursuit. Audiometry revealed moderate flat sensorineural hearing loss. The examiner's assessment was presbycusis and positional vertigo. In his January 2010 application for VA benefits the Veteran requested entitlement to service connection for hearing loss, tinnitus, and inner ear damage. He noted his inner ear disability began in January 2010. In statements in support of his claim he reported that during active service he had been exposed to loud noises without ear protection from gunfire on the rifle range, explosions during training exercises, and airplane engine noise while serving near a runway used for re-fueling aircraft. He stated that during this aircraft noise exposure he developed tinnitus and noticed his hearing was becoming impaired. A private otolaryngology report dated January 4, 2010, noted a history of hearing loss and tinnitus since service. A report of neurologic system history was negative. The examiner noted the Veteran's ear canals were clear and his tympanic membranes were normal without evidence of effusion or perforation. A neurological examination revealed his gait and station were normal. The diagnoses included hearing loss due to noise. A handwritten audiologic evaluation report noted a positive history of tinnitus and noise exposure, but a negative history of vertigo, pain, and pressure. A January 12, 2010, report included the examiner's comments of positive tinnitus and hearing loss and negative pain, pressure, and vertigo. In a February 2010 statement, the Veteran reported that his doctors told him that the tinnitus he experienced indicated inner ear damage. In a subsequent February 2010 statement he reported that approximately one month after service when he started attending college he found he could not hear well and noticed a buzzing or ringing sound. On VA audiology examination in April 2010, the Veteran reported having had noise exposure during active service and having had non-military noise exposure from power tool use and target shooting with hearing protection when exposed to intense noise. The examiner found that the moderate bilateral sensorineural hearing loss and tinnitus were at least as likely as not related to noise exposure from service. A May 2010 rating decision established service connection for tinnitus and bilateral hearing loss and denied service connection for a damaged inner ear. VA treatment records dated in July 2010 noted otoscopic examination revealed visible tympanic membranes with no apparent abnormalities. Acoustic immittance testing revealed Type A tympanograms, defined as indicative of normal inner ear pressure and compliance. It was noted the Veteran reported a history including a gradual deterioration of hearing sensitivity since his time in service with aircraft noise exposure in service. He denied any non-service noise exposure and denied any history of dizziness, otalgia, otologic surgery, ear infections, known ototoxic medications, or familial history of hearing loss. In his July 2010 notice of disagreement, the Veteran reiterated his claim that his private doctors told him his tinnitus and hearing loss were the result of inner ear damage. In a September 2010 VA substantive appeal, he reported that his doctors told him his hearing loss and tinnitus were due to inner ear damage because his hearing tests had shown sensorineural, not conductive, hearing loss. In an October 2010 statement, he reported that internet source information from the Mayo Clinic noted that a common cause of hearing loss and tinnitus was due to inner ear damage to the tiny, delicate hairs (cilia). In correspondence dated in June 2012 he asserted that he had balance problems due to damage to the hair-like cell structures in the inner ear. He stated that Dr. J.L.B. had confirmed that his balance problems were related to inner ear damage. VA treatment records dated in December 2010 show the Veteran underwent coronary artery bypass grafting times four in 1995. He also had a stint placement in October 2010. VA audiology examination in July 2012 revealed normal acoustic immittance, bilaterally. The diagnoses included bilateral sensorineural hearing loss. It was noted the Veteran reported he had worked as a biologist after service with no occupational noise exposure. He also complained of balance problems walking on uneven surfaces, in low light, or up and down stairs. Private medical records dated in January 2013 revealed a normal VNG. There was no response on vestibular evoked myogenic potential (VEMP) testing and the report noted the presence of a saccular and/or inferior vestibular nerve dysfunction could not be ruled out. It was also noted that superior canal dehiscence could not be ruled out for either ear at that time. In correspondence dated in February 2013 the Veteran reported that balance had been a problem for him since the mid-1950s when his enlistment ended and had become worse in recent years. He stated that it was the assessment of Dr. D.M.Z. that he had benign paroxysmal positional vertigo. He also stated that loss or balance, unsteadiness when walking, or vertigo were often caused by inner ear problems. At his April 2013 hearing the Veteran testified that he was exposed to aircraft noise during active service and that he had recently been provided a diagnosis of positional vertigo with vestibular disorder. He stated that "thinking back at it" his balance problems occurred at the same time in 1956 when he found he could not hear his college instructors. He reported that he had been experiencing vertigo that lasted up to a day and required that he stay in bed. He stated that his daughter was a medical doctor and he had looked at medical literature which he believed indicated his balance problems could be caused by inner ear damage. In an April 2013 statement the Veteran's spouse, who is shown by the record to have worked as a nurse, noted that she met him shortly after he was released from active duty and that he had difficulty hearing her during the time they dated. She stated she had noticed he was unsteady which she believed indicated a balance problem. She reported that they had not had funds for medical treatment because their income was used for educational expenses and to raise their four children. It was her opinion that his hearing loss and tinnitus were caused by damage to the inner ear that more than likely occurred while he was on active duty and that his unsteadiness may also be related to inner ear damage. In an April 2013 statement the Veteran's daughter, S.P., M.D., a board certified diagnostic radiologist, noted that two of the Veteran's doctor had provided diagnoses of imbalance problems that were associated with his sensorineural disorder. She stated that he had experienced hearing, tinnitus, and balance problems as long as she could remember and that they were present when he was in his 30s, which was very unusual, and had progressed with age. She stated there was no family history of hearing loss or bone dysplasia and that the Veteran had no history of temporomandibular joint arthritis, head or neck injury, acoustic neuroma, tumors, hypertension, or vascular anomalies. It was noted he had not been exposed to high doses or prolonged use of vancomycin/gentamycin, cancer medications, quinine medications, chloroquine, or diuretics. She stated he hunted a few times each year, but that he always wore ear protection when he shot. It was her opinion that, although other factors could have been involved, with the constellation of symptoms his exposure to loud noises most likely caused sensorineural damage to the inner ear resulting in his hearing loss, tinnitus, and imbalance problems. VA examination in June 2013 included a diagnosis of peripheral vestibular disorder. The Veteran reported a history of loud noise exposure in service with hearing loss after service that had progressively worsened. He reported a life-long history of "poor stability" and dizziness spells that began several years earlier. He stated that an ear, nose, and throat specialist had recommended he complete physical therapy for balance. He denied any history of acoustic trauma in service. The examiner noted that physical examination revealed the external ears, ear canals, and tympanic membranes were normal. Gait was normal. Romberg testing was normal or negative. Dix Hallpike testing (Nylen-Barany test) for vertigo was normal which was noted as no vertigo or nystagmus during testing. Limb coordination testing (finger-nose-finger) testing was normal. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the peripheral vestibular disorder diagnosis. In was noted that a January 2013 VEMP revealed no response and that an October 2004 VNG demonstrated findings consistent with peripheral vertigo. It was the examiner's opinion that the Veteran's peripheral vestibular disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale it was noted that he did not sustain a specific blast injury with acoustic trauma during service, but rather had repeated loud noise exposure. His dysequilibrium symptoms were noted to have started many years after service. The examiner found that while the VEMP test could not rule out vestibular nerve function or semicircular canal dehiscence, his clinical history did not support those diagnoses. The current episodes of dysequilibrium were felt to be related to aging, cardiovascular disease, and a history of transient ischemic attacks and not to noise exposure during service. Nor were his inner ear issues aggravated by his service. The rationale for the aggravation opinion was that the inner ear condition developed decades after service. The examiner also found his dysequilibrium was not related to or aggravated by his service-connected hearing loss and tinnitus because his complaint of dizziness was a separate medical condition and his dizziness was not made worse by any hearing issue or tinnitus. The Veteran reiterated his claims in correspondence dated in July 2013. He also reported, in essence, that his August 1956 separation examination had not been a comprehensive examination. Private treatment records from Dr. D.M.Z. dated in June 2013 noted the Veteran had a five year history of intermittent vertigo, likely benign positional vertigo (BPV). It was also noted that he reported imbalance dating back to the 1950s. Records show he was receiving physical or vestibular therapy. No opinion was provided as to the date of onset of his vertigo nor were any additional comments provided relating his reported imbalance problems in the 1950s to his current vertigo. Based upon the evidence of record, the Board finds that an inner ear disability was not manifest during active service, that an organic disease of the nervous system was not manifest to a degree of 10 percent or more within one year of service discharge, that an inner ear disability is not shown to have developed as a result of an established event, injury, or disease during active service, and that an inner ear disability is not shown to have developed as a result of or to have been permanently aggravated by a service-connected disability. The June 2013 VA medical opinions in this case are persuasive and based upon adequate rationale. They are shown to have been based upon a thorough examination, a thorough review of the evidence of record, and adequate consideration of the credible evidence of record, to include diagnostic testing and interpretation of those results. The examiner, in essence, found it was significant that the Veteran did not sustain a specific blast injury with acoustic trauma during service and that his clinical history did not support diagnoses of vestibular nerve function or semicircular canal dehiscence. His current episodes of dysequilibrium were felt to be related to aging, cardiovascular disease, and a history of transient ischemic attacks. Those events are shown to have occurred after service. In determining whether evidence is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Macarubbo v. Gober, 10 Vet. App. 388 (1997). Where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case. Pond v. West, 12 Vet. App. 341 (1999). The Board notes that the Veteran is competent to report that he experienced balance problems and to state that upon reflection that he believed the problems began soon after service when he first noticed problems with hearing loss and tinnitus. His references to medical literature and known medical institution internet source information as to damage to the cilia and a relationship between such damage and balance disorders are also considered to be competent evidence in this case. The Veteran's spouse and his daughter, both of whom are shown to have had medical training, are competent to report their observations as to the Veteran's problems with balance and to provide opinions as to a relationship between such problems and inner ear damage or sensorineural damage. The Board finds, however, that the evidence provided by the Veteran, his spouse, and his daughter as to observed balance problems soon after service or within decades after his release from active service are found to be less credible due to the family's interest in the outcome of the case and due to inconsistency with the other evidence of record. Significantly, those statements, to the extent they indicate balance problems prior to approximately 1995, are found to be inconsistent with the Veteran's own report of medical history upon separation in August 1956 in which he denied having or having ever had dizziness or fainting spells and his demonstrated ability after service to have attended college and graduate school, to have worked as a biologist, to have used power tools, and to have participated in sporting activities without seeking medical treatment. He is also shown to have had extensive medical care in 1995, including coronary artery bypass grafting, and there is no indication that he reported or was treated for any balance problems at that time. There is no evidence in his treatment reports of any balance problems prior to October 2004, nor any indication that the problems manifest at that time had existed for any prolonged period. Private audiology reports dated in January 2010 also show the Veteran denied vertigo and VA treatment records dated in July 2010 show he denied any history of dizziness. The treatment reports of medical history in this case are not indicative of a long-standing or chronic balance problem manifest until several decades after his separation from active service. The Board also notes that the Veteran reported that his private physician, Dr. J.L.B., had confirmed that his balance problems were related to inner ear damage and that the Veteran's spouse and his daughter provided opinions as to a relationship between his present balance problems and inner ear damage or sensorineural damage. However, no supporting evidence nor specific reference to medical literature supportive of such a relationship which adequately addresses the additional factors of aging, cardiovascular disease, and a history of transient ischemic attacks has been provided. There is no indication that Dr. J.L.B. documented any statements as to etiology he may have provided the Veteran nor any indication other factors were considered or excluded as part of such statements. Although the Veteran's daughter acknowledged that other factors could have been involved in present balance problems, no specific explanation was provided identifying those factors nor why they were considered to be less significant than in-service noise exposure. The Board finds the Veteran's report of an etiology opinion from Dr. J.L.B. to be less credible because the opinion from Dr. J.L.B. has not been submitted as evidence. Therefore, a second hand report is less persuasive than the VA examination. The Board finds that the etiology opinions of his spouse and daughter are less credible due to the family's interest in the outcome of the case, and because they report a longer history of balance problems than the Veteran reported to medical providers. Similarly, the Board finds the June 2013 notation by Dr. D.M.Z. that the Veteran reported imbalance dating back to the 1950's without additional comment as to that specific matter to be of no probative value. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. Leshore v. Brown, 8 Vet. App. 406, 409 (1995). Additionally, a "[Doctors'] diagnoses can be no better than the facts alleged by appellant." Swann v. Brown, 5 Vet. App. 229, 233 (1993). Upon a comprehensive review of the entire record in this case, the Board finds the preponderance of the evidence is against the Veteran's claim. The persuasive VA medical opinions in this case show that the Veteran's inner ear disability was not manifest during or for many years after active service, did not develop as a result of active service, and was not caused or aggravated by a service-connected disability. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an inner ear disability is denied. ____________________________________________ Harvey. P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs