Citation Nr: 1336650	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  10-13 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for Meniere's disease to include right ear hearing loss and tinnitus.

2.  Entitlement to service connection for left ear hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel





INTRODUCTION

The Veteran had active service from November 1973 to April 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDINGS OF FACT

1.  The probative medical opinion evidence of record shows that the Veteran's current Meniere's disease, right hearing loss, and tinnitus are not etiologically related to in-service noise exposure.  

2.  The probative medical evidence of record shows that the Veteran does not have a hearing impairment in the left ear for VA purposes. 


CONCLUSIONS OF LAW

1.  Meniere's disease to include right ear hearing loss and tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).

2.  Left ear hearing loss was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  The requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

In a July 2008 VCAA letter sent to the Veteran prior to the appealed February 2009 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claims as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA.  The 2008 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  The Board finds that VA's duty to notify has been met. 

The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claims.  Specifically, the information and evidence that have been associated with the claims file includes service treatment records and private treatment records.  The Veteran was also afforded VA examinations and opinions in February 2009 and July 2013.  The Board is cognizant of the arguments set forth by the Veteran's representative in the October 2013 Informal Hearing presentation in regard to the adequacy of the examinations.  The Board, however, finds that the findings reported in the examination reports are adequate to decide the claims.  The opinions found by the Board to be dispositive of the issues are based on review of the claims file and knowledge of the Veteran's relevant medical history, consideration of the contentions of the Veteran, and examination of the Veteran, and supported by a rationale based on sound medical principles.  For these reasons, the Board finds the examination reports adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process.  It does not contain any evidence not already in the paper claims folder or considered by the RO.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process, identifying relevant treatment he received for his disability, and submitting lay statements detailing his personal observations.  Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  The Board finds that VA's duty to assist has been met.  
II.	Pertinent Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).  In order to establish service connection for a claimed disorder, the following must be shown:  (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, 1167 (Fed. Cir. 2004).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2013).  The United States Court of Appeals for the Federal Circuit has recently held that absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Moreover, where a veteran served continuously for ninety (90) days or more 
during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss (organic disease of the nervous system) becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013).

III.	Analysis - Bilateral Hearing Loss

The Veteran contends that his hearing loss, tinnitus, and Meniere's disease are related to noise exposure in service while serving on the flight line.

The Veteran's pure tone thresholds, in decibels, at the September 1973 entrance examination were interpreted as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5

5
LEFT
20
5
5

5

The Veteran's pure tone thresholds, in decibels, at the August 1974 initial flying examination were interpreted as follows:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
10
0
LEFT
0
0
0
0
10

In a September 1975 treatment record, the Veteran reported pain in both ears and itching.  The Veteran was diagnosed with bilateral external otitis.  At the Veteran's January 1981 separation examination, he reported ear trouble, referring to muffled sounds.  At that time, the Veteran's pure tone thresholds, in decibels, were interpreted as follows:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
20
15
LEFT
15
15
15
15
15

Additionally, on the Report of Medical history taken in conjunction with the separation examination, the Veteran reported ear, nose, and throat, and hearing loss trouble.   A review of the Veteran's service treatment records revealed no treatment or diagnosis of hearing loss, tinnitus, or Meniere's disease.  

In an August 2008 statement, the Veteran reported that he first served as a ground crew member in-service.  He reported that at the time of his initial hearing loss, there was enough concern to bring the issue to the attention of his squadron commander.  He reported that he was scheduled for a hearing test due to his complaints of ringing in his ears and muffled hearing.  After the hearing test, he recalled that the examiner told him that the test showed a slight hearing loss, but could not tell him if the loss was going to be temporary or permanent.  Based on those test results, and due to his concerns about his hearing, his Sergeant convinced his Squadron Commander to let him leave the flight line and retrain into the administrative filed.  The Veteran also detailed his in-service noise exposure from being on the flight line and working with jet engines.  He stated that he learned to live with his tinnitus and hearing loss until they started to become disabling.  He reported that the ringing had become so loud, he would become nauseated and dizzy.  Vertigo would set in and he would become incapacitated.  

The Veteran was seeking private treatment for his claimed conditions.  In a November 2006 letter, the Veteran's physician, Dr. B.T. stated that the Veteran was under his care for Meniere's disease since April 2005, which was affecting his right ear causing unpredictable bouts of dizziness and hearing loss.  The left ear was normal.  The Veteran's chief complaints were continued fluctuation of hearing loss, especially with low-pressure fronts, and mild instability, but no significant bouts of vertigo.  Additionally, the physician noted that the Veteran's condition was of unknown etiology or cause, but certainly there were a number of factors that could trigger or worsen the Meniere's symptoms.  These consisted of stress, extensive body movement, visual mobile objects, and even weather changes.  Travel with airplane pressure changes could also aggravate the condition.  (In an April 2005 letter, Dr. B.T. previously described that the Veteran had classic symptoms of Meniere's disease-which were hearing loss, fullness, tenderness, and episodic vertigo.)  

In a February 2008 letter, Dr. B.T. indicated that he continued to treat the Veteran for Meniere's disease with symptoms of dizziness and hearing loss.  The Veteran's history was one of fluctuation, progressive right hearing loss, and instability.  He had hearing loss of approximately 60 percent in the right ear and the left ear was normal.  Dr. B.T. maintained again that the Veteran's overall condition was of unknown cause.  Dr. B.T. reiterated that there were a number of factors that could trigger or worsen the Meniere's disease.  These consisted of stress, extensive body movement, objects moving in his visual field and even weather changes.  Travel within airplane pressure changes could also aggravate the condition.  

The Veteran was afforded an audiological VA examination in February 2009.  The examiner documented the Veteran as reporting that his tinnitus began in 2004 when his Meniere's disease began and that it was constant in the right ear only and it would fluctuate in volume.  After audiological testing, the Veteran was diagnosed with sensorineural, moderately severe to severe right ear hearing loss.  The Veteran's left ear hearing was clinically normal.  The examiner concluded that after reviewing the claims file and the medical literature, the Veteran's right sided hearing loss and tinnitus were not caused by or a result of military acoustic trauma.  The Veteran stated that his hearing loss and tinnitus began in 2004 when his Meniere's disease began.  This was well documented in his private medical records from his otologist.  His audiograms from 2005 to 2008 had consistently revealed hearing within normal limits in his left ear, without an audiometric configuration consistent with noise exposure.  Furthermore, his right ear had shown fluctuation from a mild to moderate to severe to profound hearing loss in the absence of a configuration consistent with noise exposure.  His service medical records document only one report (1975) in regards to ear pain, but there was no mention of hearing loss or tinnitus.  His current audiometric configuration was not consistent with acoustic trauma and mirrored findings similar to those from his otologist.   Acoustic trauma from aircraft engine noise usually resulted in a symmetrical hearing loss with a specific audiometric configuration.  However, the Veteran's hearing loss was asymmetrical with the unaffected ear (left) displaying normal hearing and no audiometric configuration consistent with noise.  In regards to his tinnitus, he specifically tied the onset of it to his Meniere's disease and not to a particular incident from the service.  It was most likely the Veteran's hearing loss and tinnitus resulted from post-military, Meniere's disease and not military acoustic trauma.  

In the June 2009 Notice of Disagreement, the Veteran reported that he previously explained that he suffered from hearing loss and ringing in his ears since he left the flight line, but the problems were so slight at the time that they were more of a nuisance than a major health concern.  The Veteran included articles from the Internet, including an article on Meniere's disease which noted that the cause of the disease was unknown but may be due to "idiopathic endolymphatic hydrops" (i.e., excess ear fluids), or due to a blood vessel pressing on a nerve, or due to an autoimmune condition, or due to a virus infection.  

The Veteran was afforded another audiological VA examination in July 2013 in light of additional relevant service treatment records added to the record.  Upon audiological testing, the examiner diagnosed the Veteran with right sensorineural hearing loss.  Also noted was sensorineural hearing loss in the left ear with a speech discrimination score of 20 percent; however, the Board finds that this is clearly a transcription error.  Audiometric levels have been and continue to be normal in the left ear and a normal speech discrimination score of 96 percent was reported for the right ear when clearly the severe hearing loss is in the right ear.  After a review of the claims file, the VA examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service.  The Veteran was given the benefit of the doubt since he had a high risk noise occupation for some of his military service.  However, there was evidence that he did not suffer hearing loss during military service.  The Veteran had normal auditory thresholds at separation and a standard threshold shift beyond test re-test variability and normal progression did not occur for either ear when comparing entrance and separation evaluations.  The Institute of Medicine (2005) concluded that based on current knowledge of cochlear physiology there was insufficient scientific evidence for delayed-onset of hearing loss, secondary to military noise exposure.  Hearing loss should occur at the time of the exposure.  There was not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure.  The available anatomical and physiological evidence suggested that the delayed post exposure noise induced hearing loss was not likely.  If hearing was normal on discharge and there was no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there was no basis on which to conclude that a current hearing loss was causally related to military service, including noise exposure.  There was no nexus between any current hearing loss and military service.  

Additionally, the examiner stated that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure.  There was no hearing loss during service to support his claim or reported tinnitus during service.  He did not correlate the tinnitus to an acoustic trauma event during service.  He had been diagnosed with Meniere's disease, which was known to be associated with tinnitus.  Considering all of the evidence the examiner could not be 50 percent or more certain tinnitus started from military noise exposure.  

The Veteran was also afforded an ear disease VA examination in July 2013.  The Veteran was noted to have Meniere's disease.  Based on a review of the claims file, the examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that the Veteran's Meniere's was diagnosed in 2004, several years after discharge from the military.  There was no known specific cause for Meniere's.  Therefore, it was unlikely that the Veteran's Meniere's disease was caused by exposure to loud sound in the military.  

The Veteran contends that he experienced hearing loss and ringing in the ears in service and ever since service.  The Veteran is competent to describe readily observable features or symptoms of illness.  See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  The Board finds his statements in regard to his hearing credible and consistent with evidence contemporaneous to the Veteran's service where he is shown to have complained of "muffled" hearing on separation from the military in January 1981.  The Board, however, cannot find his statements in regard to the onset of his tinnitus to be credible as they are inconsistent with evidence contemporaneous to the Veteran's service where when asked of problems associated with his ears, he did not describe ringing in his ears.  Evidence contemporaneous to service is deemed more reliable due to its proximity to service than recollections made decades later.  Also, the history of onset in 2004 he provided to the 2009 VA examiner is inconsistent with the other statements of record.  It is also significant that private treatment records and private opinions from 2005 and 2006 do not show a complaint of tinnitus associated with military noise exposure.  Rather, the Veteran's ear complaints, including hearing loss, are associated with Meniere's disease.  The 2013 VA examiner noted that Meniere's disease was known to be associated with tinnitus.  For these reasons, the Board does not find that there is credible evidence of ringing in the ears in service and ever since service.  The record, however, does contain credible evidence of in-service noise exposure.  The mere fact of in-service noise exposure is not enough, however, there must be chronic disability resulting from such noise exposure.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, relating current hearing loss, tinnitus, Meniere's disease, and hearing difficulties over the years to a specific event in service, is a question of causation that falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Consequently, medical evidence is required to address the nexus question presented in this case.  The Board finds the 2009 and 2013 VA opinions that the Veteran does not have hearing loss, tinnitus, and Meniere's disease etiologically related to in-service noise exposure persuasive because they are based on knowledge of the relevant facts of the Veteran's lay and medical history and supported by very thorough rationales based on sound medical principles.  There are no medical opinions to the contrary.  The internet articles submitted by the Veteran address general medical information and are not specific to the facts pertaining to the Veteran's case.  Indeed, the Meniere's article does not even tend to support the Veteran's theory because while noting the idiopathic nature of the disease, the article then references causes other than acoustic trauma as possible causes for Meniere's disease.  Unlike the articles, the medical opinion evidence addresses the specific facts pertaining to the Veteran's case and this evidence has found no causal relationship.  The Board is cognizant of the Veteran's argument that because Meniere's disease is idiopathic it should be found as related to in-service noise exposure.  The fact of the Veteran's in-service noise exposure was well known to the VA examiners and presumably well known to the Veteran's private physician Dr. B.T.; however, these examiners despite acknowledging the idiopathic nature of Meniere's disease did not otherwise find that it was probably due to in-service noise exposure.  Lastly, the Veteran does not have hearing loss for VA purposes in the left ear.  See 38 C.F.R. § 3.385 (2013).  For these reasons, the Board finds that service connection is not warranted for meniere's disease to include right ear hearing loss and tinnitus, and left ear hearing loss.  

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  The preponderance of the evidence, however, is against the Veteran's claims and so that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for Meniere's disease to include right ear hearing loss and tinnitus is denied. 

Service connection for left ear hearing loss is denied. 



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs