Citation Nr: 1335690 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-36 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hearing loss of the left ear, to include as due to otitis media. 2. Entitlement to service connection for residuals of left ear otitis media, namely, tympanosclerosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1953 to February 1955. This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2011, the Veteran testified at a hearing at the RO before a local hearing officer. In October 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings have been included in the Veteran's VA claims folder. In February 2013, this matter was last before the Board, at which time it was remanded for further development. That development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a June 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection of "residuals of hearing loss with right tympanic membrane perforation," i.e. entitlement to service connection for right ear hearing loss and tympanic membrane perforation as a residual of right ear otitis externa. Thus, these matters are not before the Board. In an October 2013 Supplemental Statement of the Case (SSOC), the AMC continued to deny service connection for left ear hearing loss, as well as residuals of left ear otitis media. Although the issue in the SSOC is worded as entitlement to service connection for "bilateral hearing loss to include as due to otitis externa/otitis media," from a review of the SSOC, it is clear that the AMC considered both left ear hearing loss and any residuals of left ear otitis media. In any event, these claims are granted herein below. In this regard, the Board notes that the claim for service connection of residuals of left ear otitis media does not encompass otitis media, but rather the residuals thereof. The Veteran has consistently sought service connection for impaired hearing acuity, and the evidence documents scarring of the left tympanic membrane, but no current otitis media of the left ear. He has testified that he had infections during service, but that he was provided medications that cured them. See Board hearing transcript at pages 7-8. A claim for service connection of a disorder may be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran has left ear hearing loss that is causally related to service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran has tympanosclerosis of the left ear that is causally related to service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, service connection for left ear hearing loss is established. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. Resolving doubt in favor of the Veteran, service connection for tympanosclerosis is established. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C.A. §1110; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Service connection for sensorineural hearing loss may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 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, 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 (2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that he incurred left ear hearing loss in service, either as due to otitis media or as due to exposure to acoustic trauma. He has testified that he served in an artillery unit and that for a period of about 5 weeks, he was exposed to 105 Howitzer fire almost every day, without the use of hearing protection. The Board finds the Veteran's statements concerning acoustic trauma credible, competent and probative. It is conceded, therefore, that he was exposed to acoustic trauma in service. Prior to November 1967 service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the applicable tables below show the ASA measurements recorded in service with the comparable ISO (ANSI) measurements in adjacent parentheses. In January 1953 the Veteran was afforded a pre-induction examination. Examination at that time noted a cicatrix of the right ear drum, but not the left ear drum. The pre-induction examination report, shows pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 (25) 10 (20) 5 (15) N/A 10 (15) Contained within the service treatment records is an April 1954 assessment of otitis media of the left ear. The note associated with this assessment also documents that the left tympanic membrane was "badly scarred." The Veteran was treated for otitis media, which resolved. The examination report included a notation that the Veteran had defective hearing that was not considered disqualifying. While hearing loss in the right ear was shown as the Veteran's puretone threshold at 4000 Hz. was 70 decibels, it was not clear from the report whether the notation of hearing loss indicated that hearing loss was also present in the left ear. In that regard, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels and higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the February 2013 remand, the Board asked that an examiner opine whether it is clear and unmistakable that left ear hearing loss pre-existed service. In September 2013, a VA examiner opined that the Veteran had normal hearing at entrance in the left ear. Accordingly, the notation on the entrance examination was interpreted by the examiner as only referring to the right ear and the presumption of soundness with respect to the left ear has not been rebutted. Thus, the claim will not be considered on the basis of aggravation but rather on the basis of whether current hearing loss is related to service. In February 1955, the Veteran received a separation examination, at which time he complained of ear trouble. See February 1955 Report of Medical History. An audiogram was not obtained upon separation, but upon whispered and spoken voice testing hearing was 15/15 bilaterally. 15/15 is normal. Smith v. Derwinski, 2 Vet. App. 137 (1992). Examination of the ears was normal on clinical evaluation. Of record is a March 1970 report of VA ear nose and throat examination. Examination of the left ear canal was within normal limits, as was examination of the left ear drum. On the authorized audiologic evaluation, pure tone thresholds, in decibels, were as follows for air conduction and bone conduction, respectively: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 5 N/A 35 HERTZ 500 1000 2000 3000 4000 LEFT Zero Zero 5 N/A 40 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The March 1970 ear, nose and throat examination report also contains pure tone thresholds per ASA audiometric norms. Those audiometrics are as follows: HERTZ 500 1000 2000 3000 4000 LEFT Zero (15) Zero (10) Zero (10) N/A Zero (5) In December 2009, the Veteran submitted a Notice of Disagreement (NOD). In the NOD, he related that he was seeking benefits for "nerve and ear damage," and noted that he was exposed to acoustic trauma during 8 weeks of artillery training at Camp Chaffee, Arkansas. In May 2010, the Veteran was afforded a VA (QTC) audiologic examination. At the time of the examination, the Veteran reported that he began experiencing difficulty hearing during artillery training at Camp Chaffee, Arkansas. He then complained of difficulty hearing when spoken to. A history of tympanoplasty was noted and the Veteran denied a history of exposure to acoustic trauma, but for in service. Physical examination of the left ear was within normal limits. On the authorized audiologic evaluation, pure tone thresholds, in decibels, were as follows for air conduction and bone conduction, respectively: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 30 70 75 HERTZ 500 1000 2000 3000 4000 LEFT 15 15 30 70 70 Speech audiometry revealed speech recognition ability of 84 percent in the left ear. These audiometrics meet VA's requirements for considering hearing loss a disability of the left ear. 38 C.F.R. § 3.385 (2013). In furtherance of substantiating his claim, the Veteran submitted an etiological opinion from a private audiologist from The University of Oklahoma dated in December 2010. The opinion documents that the Veteran presented with a complaint of bilateral hearing loss that he felt began as a direct result of in-service noise exposure. The Veteran denied a history of post-service noise exposure at this time. The opinion reflects that otoscopic examination was normal and that the tympanic membranes were visualized bilaterally. Pure tone audiometry revealed normal hearing to a severe sensorineural hearing loss for the left ear. Tympanograms were type A (normal) bilaterally. The audiologist assessed binaural hearing loss and after reviewing the history "provided by the Veteran," the audiologist concluded that "it cannot be ruled out that [the Veteran's] past history of acoustic trauma and exposure to hazardous noise in the military are contributing factors to his current hearing threshold levels ... ." In April 2011, the Veteran was afforded a hearing before a DRO. At this time, he related a history of noise exposure in service and asserted that his hearing loss was attributable thereto. He noted a history of ear infection in service, and submitted a letter from his sister which related that she recalled the Veteran participating in artillery training in service. In October 2011, the Veteran testified before the Board. At the hearing, he reiterated his contentions that hearing loss was attributable to in-service noise exposure. He explained that following artillery training, he and his comrades all experienced hearing difficulty, but he thought that it would not be permanent and did not seek medical treatment. He did recall a history of ringing in his ears and a bad infection in his right ear. He denied any history of in-service noise exposure, but for artillery training. He noted a history of tympanoplasty of the right ear in 1970, but denied treatment for any ear thereafter. He explained that he "learned to live with them" and would watch people so he "could understand them." In March 2012, the Veteran was afforded another VA audiologic examination, which contains charted audiometrics meeting VA's standards for considering hearing loss a disability in the left ear. 38 C.F.R. § 3.385. The examination report notes that the claims file was reviewed. The March 2012 VA examiner concluded that it was less likely than not that the Veteran's left ear hearing loss was incurred or attributable to service. In this regard, the examiner noted that the Veteran entered service with hearing sensitivity within normal limits bilaterally, with the exception of the right ear. It was further noted that no additional examinations were present in the history for over 15 years following his discharge, when the 1970 audiograms showed hearing sensitivity within normal limits from 250 through 4000 Hz in the left ear. The examiner explained that given hearing within normal limits for the left ear at the time of separation and in light of the absence of clinical or research evidence supportive of a delayed onset hearing loss attributable to noise exposure or acoustic trauma that occurred, weeks, months or years after noise exposure, as well as an Institute of Medicine Report on "noise and Military Service" that concluded there is currently no scientific evidence that supports delayed onset noise-induced hearing loss, it was less likely than not that left ear hearing loss began or was related to active duty service. Notably, the examiner did link tinnitus to service, and particularly based upon the Veteran's lay observations. In May 2013, the Veteran was again afforded a VA examination, based upon a review of the claims file. At this time, the Veteran denied any ear problems prior to basic training and reported exposure to acoustic trauma in service from artillery fire. He reported that after basic training, he had worsening hearing loss, particularly worse on the right side. Physical examination of the left ear was normal, but for mild tympanosclerosis. In this regard, the examiner explained that "[t]his was the normal post-surgical appearance of [a] tympanic membrane after tympanoplasty or after multiple episodes of otitis media," which was "sometimes referred to as 'scarring' of the tympanic membrane." An audiogram showed hearing loss of the left ear considered a disability for VA purposes. The May 2013 VA examiner largely focused on otitis media/otitis externa, noting that the Veteran did not then have either in the left ear. He explained that without the advantage of binocular microscopy and specialized instruments for cleaning the ear canal, found only in certain ENT offices, that otitis media with otorrhea is often misdiagnosed as otitis externa. He also explained that purulent effusion from an acute otitis media can drain through a tympanic membrane perforation and cause secondary inflammation of the ear canal (otitis externa). The examiner related that the Veteran likely had multiple episodes of otitis media during military service resulting in tympanic membrane perforation and otorrhea through the perforation that was mistaken as otitis externa, although he did not currently have otitis media or otitis externa of either ear. However, the examiner explained that the Veteran did have residuals of hearing loss worse in the right ear in which the "most history of otitis media has been present" and that the Veteran had a residual of tympanosclerosis. The examiner felt that it was more likely than not that "these residuals are related to the episodes of otitis media experienced during military service." In September 2013, the examiner was asked to enter an addendum to his opinion, particularly addressing the left ear. In salient part, the examiner remarked that it was less likely than not that the current left ear hearing loss was related to active service, either as a result of excessive noise exposure or otitis media. In this regard, he explained that there was only one record of otitis involving the left ear during service and that the Veteran did not recall or report any further problems with the left ear. The examiner related further that even if the Veteran had one true episode of otitis media or otitis externa, that this cleared and the Veteran still had a normal hearing test at the time of his separation from service. He also reiterated the assertions of the March 2012 examiner that the evidence, including scholarly research, did not support delayed-onset hearing loss. In May 2013, the Veteran submitted a statement from an audiologist who considered the Veteran's history and opined that bilateral hearing loss was "at least as likely as not related to his military experience as a trainee and quartermaster; the rationale being that exposure to excessive noise from M-1 rifles, 50 caliber machine guns, hand grenades and 105 mm Howitzers result in acoustic trauma, hearing loss and tinnitus." In resolving any doubt in the Veteran's favor, the Board concludes that service connection for left ear hearing loss is warranted. As outlined above, service connection for hearing loss is not necessarily precluded for hearing loss that first met VA's requirements under 38 C.F.R. § 3.385 after service. In this regard, the Board notes that VA examinations have largely resulted in negative etiological opinions with respect to the left ear and it is not until over 50 years following discharge that the requirements of 38 C.F.R. § 3.385 were shown to be met for the left ear. It is notable that as of March 1970 the left ear demonstrated about a 20 dB shift in the 4000 Hz range from discharge to that time. In addition, a private audiologist has provided a favorable opinion with a rationale and the Veteran has credibly reported that he experienced difficulty hearing in service that has continued. Thus, the evidence is in equipoise as to whether current hearing loss is related to service and in resolving all doubt in the Veteran's favor, the claim is granted. Gilbert, supra. Lastly, the Board notes that the present matter involves a claim for service connection of residuals of left ear otitis media. As outlined in the introduction section of this decision, the April 1954 otitis media resulted in tympanic scarring, noted as quite significant in nature. The service treatment records indicate that the Veteran did not enter service with tympanic scarring of the left ear. Thus, service connection for residuals of left ear otitis media, namely tympanosclerosis, is granted. Gilbert, supra. ORDER Entitlement to service connection for hearing loss of the left ear is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for tympanosclerosis is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs