Citation Nr: 1327583 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-28 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for lumbar spine strain. 3. Entitlement to service connection for vertigo. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran had active service from April 1983 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2007 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO) which denied the benefits sought on appeal. In the June 2012 Board decision, service connection for tinnitus was granted. Service connection for bilateral hearing loss sleep apnea, lumbar spine disorder, and vertigo were remanded for further development. By rating decision of January 2013, service connection for sleep apnea and right ear hearing loss were granted. Therefore, those issues are not reflected on the title page. The issues of service connection for lumbar spine disorder and vertigo being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence fails to establish that the Veteran's diagnosed left ear hearing loss had its onset in service, within one year of service discharge, or is otherwise related to his active service. 2. The competent and credible evidence fails to establish that the Veteran's diagnosed left ear hearing loss is due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Left ear hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Left ear hearing loss is not proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA duty to notify was satisfied by way of a letter sent July 2007. The letter fully addressed all notice elements. It informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With that letter, the RO effectively satisfied the notice requirements with respect to the issue of service connection on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet.App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet.App. 112 (2007). None is found by the Board. VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The RO associated the Veteran's service treatment records, and VA treatment records with the claims file. No outstanding evidence has been identified. The Veteran was also afforded VA examinations in connection with the claim. The Board finds the March 2009 and August 2012 examinations related to his hearing loss were thorough and adequate upon which to base a decision. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. The Veteran was offered a personal hearing in connection with the claim. He declined the hearing. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet.App. 110, 111 (2002); Caluza v. Brown, 7 Vet.App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. For service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran asserts that service connection is warranted for left ear hearing loss based on service incurrence, or in the alternative, due to a service-connected disability. He maintains that he was exposed to jet air craft engines without the benefit of hearing protection in service. He also indicated that his service-connected sinusitis has caused his left ear hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. Service treatment records are devoid of findings or diagnoses of left ear hearing loss for VA purposes. The Veteran's hearing was evaluated on entrance, discharge, and on occasion during service. None of these tests showed hearing loss for VA purposes. There is no evidence of sensorineural hearing loss within one year of service discharge. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet.App. 155, 159 (1993). Service treatment records showed a history of ear infections. He was diagnosed on occasion with chronic otitis media. In March 2009, the Veteran underwent a VA audiology examination. He complained of difficulty with conversations and meetings. He related one incident in service of temporary, muffled hearing and ringing in his ears when an A4 jet turned up its engines unexpectedly with the Veteran 25 yards away. He had no perforated eardrums or blood draining from his ears. After service, he had civilian work history working in an automobile plant as a quality technician and quality engineer. He indicated that he did not require hearing protection in those occupations. He had no recreational noise exposure. Pure tone threshold audiometry examination showed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 5 35 35 LEFT 5 10 10 25 40 Speech recognition score of the left ear was 96 percent. The examiner reported no disabling hearing loss per 38 C.F.R. § 3.385 in the right ear and normal to mild sensorineural high frequency, noise induced hearing loss in the left ear. The VA examiner's opinion was that the Veteran had hearing within normal limits in the right ear for VA purposes and mild high-frequency sensorineural hearing loss in the left ear. His left ear hearing loss was of the noise-induced configuration. He reported that the Veteran had a history of ear infections during service with associated symptoms of sinusitis, tinnitus, and vertigo. These symptoms, according to the examiner, were not permanent during service. Otitis media, according to the examiner, does not cause high-frequency hearing loss of noise-induced configuration. Otitis media causes low frequency hearing loss. With successful treatment, otitis media and its associated symptoms are temporary in nature. Research studies show that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. Based on the studies, the Veteran's hearing test at the time of his separation from service accurately represented the effects of any hazardous noise exposure the Veteran sustained during active service, Based on this evidence, it was the examiner's opinion that the Veteran's left ear hearing loss was not caused by or aggravated by his history of active service noise exposure, ear infections, or any other event or disease process during active service. The Veteran's left ear hearing loss was caused by his history of occupational noise exposure in civilian life. Pursuant to the Board's June 2012 remand, the Veteran underwent a VA audiology examination. He complained of continued hearing difficulty. He functioned with known mild to moderate sensorineural hearing loss. He had difficulty hearing women's voices and hearing speech in the presence of background noise or multiple speakers. Throughout his military service, he reported consistent military noise exposure. He reported he was not exposed to loud noise during his civilian work. He reported a history of noise exposure to mowers with hearing protection and minimal exposure to music. History was negative for recreational, firearm, vehicle, and power tools noise. He had more than 50 sinus infections during service and he reported sinusitis and bronchial asthma. Pure tone threshold audiometry examination showed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 45 45 LEFT 55 15 20 35 40 Speech recognition score of the left ear was 98 percent. The diagnosis was left ear sensorineural hearing loss. The examiner stated that during service, there were temporary fluctuations in hearing thresholds noted over time; however, at exit from service, hearing thresholds were within normal limits across all frequencies. The examiner stated that a decrease in hearing in the left ear was not due to noise exposure in service, rather due to normal progression of hearing loss due to aging. According to the text, Tinnitus Theory and Management, "in the United States, as in other developing nations, most hearing loss develops gradually during middle or old age, without any identifiable cause or association other than advancing years." The Veteran's left ear hearing loss is less likely than not caused or aggravated by his service-connected chronic sinusitis, bronchial asthma, or common variable immunodeficiency (CVID). The examiner opined that the type of hearing loss the Veteran has is sensorineural in nature and sensorineural hearing loss is not a symptom of CVID. Sensorineural hearing loss is also not a symptom of chronic sinusitis or bronchial asthma. Chronic sinusitis may result in temporary conductive fluctuations in hearing, but not sensorineural hearing loss. As to the Veteran's hearing loss claim on a direct basis, there was no evidence of left ear hearing loss for VA purposes in service, at service discharge, or within one year of service discharge. The March 2009 VA examiner opined that the Veteran's left ear hearing loss was not caused or aggravated by his history of military noise exposure, ear infections, or any other event or disease process during service. It was the examiner's opinion that the left ear hearing loss was caused by the Veteran's history of occupational noise exposure in civilian life. The August 2012 VA examiner opined that the Veteran had a depressed threshold showing hearing loss of the right ear at 6000 hz in service and the lack of significant change is consistent with the Veteran's report that he has not been exposed to a significant amount of noise exposure since military service. Therefore, it is the opinion of the examiner that since there has been a decrease in hearing since service in the left ear, that hearing loss is not due to noise exposure in service but due to normal progression of hearing loss due to age. With respect to secondary service connection, as to Wallin element (1), the record is clear that the Veteran has left ear hearing loss. As to Wallin element (2), the Veteran does have service-connected disabilities, sinusitis, bronchial asthma, and CVID. The Veteran asserts his left ear hearing loss is also caused by his service-connected disabilities. However, as to Wallin element (3), the preponderance of the evidence is against the findings that the Veteran's left ear hearing loss is related to a service-connected disability. The March 2009 examiner and the August 2012 examiner provide opinions that are consistent as it pertains to secondary service connection. Both examiners indicate that the Veteran's left ear hearing loss is sensorineural in nature and sinusitis, bronchial asthma and the like, would not cause sensorineural hearing loss. If there was hearing loss related to the Veteran's service-connected disabilities, that hearing loss would be temporary conductive fluctuations in hearing, not sensorineural hearing loss. Moreover, any hearing loss associated with his service-connected disabilities would be low frequency in nature rather than sensorineural in nature. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Veteran is competent to report that he noticed/observed/experienced symptoms related to left ear hearing loss in connection with service, and alternatively, in connection with his later service-connected disabilities, the Board must still weigh his lay statements against the medical evidence of record. Layno v. Brown, 6 Vet. App. at 465. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his left ear hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("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."). Because hearing loss causation is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his left ear hearing loss is found to lack competency. The Veteran's lay opinion and the opinion of the March 2009 VA examiner are outweighed by the VA August 2012 VA examiner's opinion. The August 2012 VA examination included a physical examination of the Veteran, a review of the record, and provided a rationale for the negative findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion). The March 2009 VA examiner also examined the Veteran and reviewed the record, however, he did not provide a rationale for his opinion that the Veteran's left ear hearing loss was caused by noise exposure in civilian life. His opinion as to secondary service connection was in concert with the August 2012 VA opinion. However, without a rationale provided for his findings regarding hearing loss on a direct basis, the opinion was speculative in nature. The Court has held that medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998)(quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). Therefore, the March 2009 VA medical opinion has little, probative value. As to the August 2012 VA examination opinion, a medical opinion outweighs that of the Veteran. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached). Thus, as a nexus between the Veteran's claimed left ear hearing loss and service and alternatively, his left ear hearing loss and his service-connected disabilities has not been established, either through medical evidence or the Veteran's statements, the claim fails on a direct and secondary basis. For the foregoing reasons, service connection for left ear hearing loss claimed on a direct basis and alternatively, as secondary to service-connected disabilities, is denied. ORDER Service connection for left ear hearing loss on a direct and secondary basis, is denied. REMAND The Veteran claims service connection is warranted for low back strain and vertigo based on service incurrence. It is also maintained that his vertigo is related to his service-connected disabilities (Sinusitis, CVID). Initially, the Veteran was found not to have a diagnosis for his low back pain. Thereafter, his March 2009 VA examination diagnosed low back strain and showed x-rays of degenerative disease of the spine. However, the examiner stated that his low back disorder was more likely due to the type of employment he has had throughout the years, rather than his active duty. However, the examiner did not indicate the type of employment the Veteran has had that would have caused this disability, nor did she address how his employment in service was or was not related to the type of employment that could have cause his lumbar spine disorder. If a diagnosis is not supported by the findings on the examination report, or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. An additional VA examination is warranted in this regard. Additionally, during a March 2009 VA examination it was the clinician's opinion that the Veteran's alleged vertigo and episodic dizziness was not caused or aggravated by service noise exposure, ear infections, or any other event or disease process in service. At that time, it was determined that the Veteran had grossly normal peripheral and CNS vestibular function. It was therefore, determined not to be chronic and there was no continuity shown. However, VA outpatient treatment records showed that the Veteran continued to have vertigo as shown by treatment records of March 2010. Again, examination is needed in this regard. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical treatment records, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. Following completion of the above, the Veteran should be afforded an appropriate VA orthopedic examination to determine the origin and nature of his low back disorder. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine is related to service. The examiner should address how the Veteran's inservice and civilian employment has a causal effect as to his lumbar spine disorder. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with each requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. The Veteran should be afforded a VA neurology examination to determine the nature of his vertigo/dizziness disorder. All indicated studies should be performed. The examiner must provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo/dizziness disorder is due to service, an event therein, or any of his service-connected disabilities. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with each requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all of the evidence of record. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs