Citation Nr: 1335582 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-12 790 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision, by the San Diego, California, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for left ear hearing loss. The Veteran and his wife testified at hearings before a Decision Review Officer (DRO) in May 2010 and the undersigned in March 2012. Transcripts of the hearings have been associated with the claims folder. In July 2012, the Board remanded the case for further evidentiary development. A review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in April 2013. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. A review of the Virtual VA paperless claims processing system reveals that an informal hearing presentation from the Veteran's service representative, dated October 11, 2013, has been associated with his paperless claims file. FINDING OF FACT The Veteran has left ear hearing loss that is as likely as not related to military service. CONCLUSION OF LAW The Veteran has left ear hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1131, 1154, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At his enlistment examination in January 1984, an audiometric examination revealed pure tone thresholds of 10, 10, 10, 15, 10, and 30 decibels in the left ear at the 500, 1000, 2000, 3000, 4000, and 6000 Hertz levels. On December 18, 1984, the Veteran was seen for evaluation of trauma to the right middle finger; he stated that a "deck grinder" fell on top of his finger; he was diagnosed with blunt trauma, right middle finger. The Veteran was seen in April 1985 with complaints of irritability and vertigo for the previous month. In February 1988, the Veteran was seen for complaints of earache; he reported a sharp pain in the left ear that felt like the ear was clogged. The Veteran indicated that he could not hear in the left ear. The assessment was acute otitis media (rule out). Audiometric testing in March 1988 revealed pure tone thresholds of 5, 10, 15, 15, 20, and 35 decibels in the left ear at the 500, 1000, 2000, 3000, 4000 and 6000 Hertz levels. The Veteran's claim of entitlement to service connection for left ear hearing loss (VA Form 21-4138) was received in April 2008. Submitted in support of the Veteran's claim was a medical statement from Dr. William C. Carley, dated in April 2008, indicating that he had been treating the Veteran since 1992. Dr. Carley stated that the Veteran had had several problems that originated in military service, including vertigo and tinnitus. Dr. Carley related that the Veteran's vertigo and tinnitus appeared to be due to inner ear problems that likely were a result of loud noise that he experienced during service. Dr. Carley noted that the Veteran had episodes that were non-predictable of rather severe dizziness, nausea, and such; he had had at least 1 rather severe episode within the last year. Dr. Carley stated that this episode appeared to be an ear-related situation, and he related it to noise that probably originated during Veteran's service in the Navy. Dr. Carley reported that the Veteran had had service-connected injuries and that they will probably be ongoing problems for the rest of his life. Received in June 2008 were treatment reports from Dr. Carley at the Scripps Clinic, dated from February 2006 to April 2008. These records reflect ongoing evaluation for syncopal episodes; they reflect diagnoses of labyrinthitis and vertigo. The Veteran was seen in April 2008 for a follow-up evaluation, primarily for dizziness. It was noted that he had had episodes in the past. The Veteran indicated that he occasionally heard hissing and ringing in his ears and, at times, was followed by a rather severe vertigo. His ENT examination showed serous effusion behind both tympanic membranes, but not much and he had a little clear rhinorrhea. The assessment was chronic issues with vertigo and tinnitus probably as a result of military experience, but stable. The Veteran was afforded a VA audiological evaluation in August 2008. The examiner noted that the entrance examination of January 1984 showed a mild loss in the left ear at 6000 Hz upon entrance to the military. The examiner observed that no significant change was shown on examination in August 1985; and, on the separation examination in March 1988, a mild loss was documented in the left ear at 6000 Hz, which revealed no significant threshold shift from the enlistment examination. It was noted that, in the military, the Veteran was a deck seaman and worked in a gun turret; hearing protection was used. The Veteran indicated that he needed to have words repeated to hear clearly. The examiner noted that responses to pure tone testing were considered to be invalid in both ears. Variability noted using ascending and descending test methods. There was poor agreement between responses to speech and responses to tones. Word recognition testing was also of questionable validity. Tympanometry was unremarkable. Contralateral reflexes were present. The examiner stated that, due to invalid responses to pure tone and speech testing, the entire examination was inadequate for rating purposes. The examiner stated that it was his opinion that any hearing loss the Veteran may have was less likely as not caused by or a result of loud noise exposure during military service. Received in December 2009 were additional treatment records from the Scripps Clinic dated from December 2008 through April 2009. Among those records was a consultation report from Dr. Brendan Gaylis, dated in January 2009, wherein he noted that the Veteran denied any ear pain but he did complain of left greater than right hearing loss. Dr. Gaylis noted that the Veteran was exposed to loud noises in the military. Dr. Gaylis indicated that review of an audiogram, performed in December 2008, revealed a bilateral sensorineural hearing loss, significantly worse in the left ear. There was a bilateral low and high frequency loss in both ears more prominent on the left side. The impression was probable Meniere's disease, left ear. In another statement dated in January 2009, Dr. Gaylis noted that the Veteran had a bilateral sensorineural hearing loss, significantly worse on the left side. He noted that the Veteran was currently getting worked up to rule out an acoustic neuroma. Dr. Gaylis stated that it was possible, although not provable, that his hearing loss was related to noise exposure during his time in the military. Of record is yet another statement from Dr. Gaylis, dated in April 2009, wherein he noted that the Veteran was being treated for various hearing conditions that he felt more likely than not occurred while he was in service. Dr. Gaylis stated that those conditions included tinnitus and vertigo, as well as bilateral sensorineural hearing loss, significantly worse on the left side. In another medical statement dated in December 2009, Dr. Gaylis noted that the Veteran was still being treated for various hearing conditions that he felt more likely than not started while the Veteran was on active duty in the Navy; he stated that those conditions included tinnitus, vertigo and bilateral sensorineural hearing loss, worse on the left side. Dr. Gaylis stated that, realizing the conditions of duties and noise exposure to which the Veteran has been exposed while onboard a Navy ship, it was certainly reasonable to conclude that the Veteran's hearing loss was a direct result of his active duty service. At his personal hearing in May 2010, the Veteran testified that his in-service duties and responsibilities caused him to develop left ear hearing loss. The Veteran indicated that his duties included maintaining the ship's interior and exterior structures. The Veteran reported working with loud deck grinder equipment to remove paint on nonskid surfaces on the ship. The Veteran also reported working with the ships anchor and chain assembly while it ran. He also worked in the ship's laundry. The Veteran further noted that he worked at a gun mount for general quarters stations; his duties included handling, preparing and loading the five-inch gun projectiles and powder charges. He had direct hands-on duties and tasks pertaining to the operation and functions of the gun turret. The Veteran explained that the deck equipment they used was called a deck grinder crawler, which is a heavy use machine that was very noisy. The Veteran related that the duties required them to go from the front of the ship to the back, working eight hours a day for three to four days in a row before rotating. The Veteran testified that the type of hearing protection that he was provided was the foam earplugs, which consisted of a single layer. The Veteran indicated that, after service, he worked for the United States Postal Service for a limited time and was not exposed to much noise; they were not required to wear hearing protection in his work station. At his Board hearing in March 2012, the Veteran testified that his left ear hearing loss was related to military service. The Veteran indicated that he was assigned to deck division, with duties and responsibilities to maintain the exterior and interior surfaces of the ship. The Veteran related that he served on a sea and anchor detail; he worked in the chain locker, which was where the ship's anchor chain was kept. The Veteran related that the chain lock was a very loud device, especially when the chain was running; he noted that double hearing protection was required in the chain locker because of the intensity of the noise in that area. The Veteran indicated that he also served in the forward gun mount as an ammo handler; therefore, his duties and responsibilities onboard the ship were consistent with developing hearing loss. The Veteran's wife also testified to the Veteran's hearing loss, indicating that she had to repeat herself when they have dinner together. The Veteran noted that he continued to experience hearing loss after service. The Veteran was afforded a VA examination in July 2012. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 20 25 30 Speech audiometry revealed speech recognition ability of 92 percent in the left ear. The examiner reported a diagnosis of sensorineural hearing loss in the left ear. The examiner noted that there was an audiogram from Scripps Hospital dated in 2008 when the Veteran was seen by Audiology and ENT regarding a report of vertigo. The examiner reported that the examination from 2008 was 20 years after active duty service. Thresholds were not documented, as upon review they were not considered valid by this examiner. The examiner stated that the 2008 audiogram would have no bearing on his opinion as it was 20 years post active duty service and the opinion specified it was to be based on the Veteran's active duty status alone from 1984 to 1988. The examiner opined that hearing loss in the left ear was less likely as not caused by or a result of his time in the military service. The examiner noted that the Veteran presented with a mild hearing loss as at the time of entrance to the military at 6000 Hz which did not progress significantly based on national standards at the time of exit from active duty service in 1988. Therefore, he concluded that there was no evidence of hearing loss being incurred nor aggravated during military service for the left ear based on evidence in the Veteran's service treatment records from active duty service. In September 2012, the Veteran was afforded a VA examination for evaluation of ear conditions. At that time, it was noted that the Veteran had hearing loss, tinnitus and vertigo, which he stated began while in the military in 1985; he reported working in gunmount from 1985 to 1988. The Veteran stated that he wore ear protection but it was still very loud. The Veteran indicated that he started noticing hearing loss around 1985 to 1986, and it had steadily worsened since then. He indicated that he has also had tinnitus, worse on the left. Following an evaluation, the examiner reported a diagnosis of Meniere's syndrome; the examiner stated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had left-sided sensorineural hearing loss, tinnitus and vertigo that were at least as likely as not incurred in service. The examiner noted that the Veteran's vertigo symptoms are traceable to his period of active military service from 1984 to 1988. The examiner noted that a treatment report reflects that the Veteran was seen for complaints of vertigo in March 1985, and his symptoms have not relented since. He agreed with Dr. Gaylis' notes beginning in 2009 that these symptoms may be attributed to Meniere's disease. In March 2013, the Veteran's claims folder was referred to a specialist for review and opinion. The physician stated that his opinion was based on review of the claims file, the active duty medical records, the VA electronic medical records, the VA examinations dated in July 2012 and September 2012, and a limited review of the literature. The physician stated that it was his medical opinion that the Veteran's claimed condition of hearing loss was less likely than not incurred in or caused by or aggravated by the claimed in-service injury, event or illness, specifically from acoustic trauma. However, he also stated that it was his opinion that the Veteran's claimed condition of vertigo, hearing loss and tinnitus, currently diagnosed as Meniere's disease, left ear, was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The physician cited to literature which states that "the triad of hearing loss, tinnitus, and vertigo constitutes Meniere's syndrome. If the cause is unknown, it is defined as Meniere's disease." Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran 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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a veteran served ninety days or more of qualifying service and organic diseases of the nervous system, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of termination of such service, such 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For a 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 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. If 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) (2013). The Board notes that a lay person is competent to describe what comes to the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After review of the evidentiary record, the Board finds that the evidence supports the Veteran's claim. The medical evidence of record demonstrates that the Veteran has hearing loss in his left ear as defined by VA regulations. 38 C.F.R. § 3.385. Significantly, in January 2009, Dr. Gaylis reported that the Veteran had a bilateral sensorineural hearing loss, worse on the left side. And, the result of the recent audiological evaluation in July 2012 reflects hearing loss in the left ear. In addition, the Veteran has testified that his duties in service included maintaining the ship's interior and exterior structures. The Veteran reported working with loud deck grinder equipment to remove paint on nonskid surfaces on the ship. In this regard, the STRs indicate that the Veteran was diagnosed with blunt trauma to the right middle finger after a "deck grinder" fell on top of his finger. Therefore, there is evidence of noise exposure in service. It is also noteworthy that the Veteran received clinical attention for vertigo in service. Because there is current left ear hearing loss and noise exposure during military service, what is necessary in order to grant service connection is competent medical evidence linking the current left ear hearing loss to service. The record on appeal contains conflicting medical opinions. Significantly, in August 2008, the VA examiner stated that any hearing loss the Veteran may have is less likely as not caused by or a result of loud noise exposure during military. This opinion is supported by a more recent VA examiner who, in July 2012, opined that hearing loss in the left ear was less likely as not caused by or a result of his time in the military service. The examiner noted that the Veteran presented with a mild hearing loss as at the time of entrance to the military at 6000 Hz which did not progress significantly based on national standards at the time of exit from active duty service in 1988. Therefore, he concluded that there was no evidence of hearing loss being incurred nor aggravated during military service for the left ear based on evidence in the Veteran's service treatment records from active duty service. On the contrary, in January 2009, Dr. Gaylis stated that it was possible that the Veteran's hearing loss was related to noise exposure during this time in the military, although this would not explain his vertigo. In December 2009, Dr. Gaylis stated that, realizing the conditions of duties and noise exposure to which he has been exposed while onboard a Navy ship, it was certainly reasonable to conclude that the Veteran's hearing loss was a direct result of active duty service. Following a review of the claims folder in September 2012, a VA examiner reported a diagnosis of Meniere's syndrome; he stated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had left-sided sensorineural hearing loss, tinnitus and vertigo that were at least as likely as not incurred in service. A medical expert concurred with the above opinion in March 2013; significantly, while he stated that hearing loss was not incurred in service, he stated that the Veteran's claimed condition of vertigo, hearing loss and tinnitus, currently diagnosed as Meniere's disease, left ear, was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. Based on the foregoing, the Board finds that the medical evidence concerning the question of whether the Veteran's left ear hearing loss is related to military service is in relative equipoise, i.e., about evenly balanced for and against his claim. In this regard, the evidence shows that the Veteran's current left ear hearing loss is likely due to both in-service noise exposure as well as Meniere's disease. Overall, while the March 2013 medical expert concludes that the Veteran's current left ear hearing loss is less likely as not due to noise exposure, he also stated that the hearing loss in the left ear is related to the Veteran's Meniere's disease, which was found to have been incurred in service. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving reasonable doubt in the Veteran's favor concerning the origin of his left ear hearing loss, the Board finds that service connection is warranted for this disability. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). Service connection therefore is reasonably in order for left ear hearing loss. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left ear hearing loss is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs