Citation Nr: 1337555 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-12 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for Meniere's disease. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO) which denied service connection for hearing loss in the left ear and Meniere's disease. FINDINGS OF FACTS 1. High frequency sensorineural hearing loss, left ear, was observed on the Veteran's entrance examination. 2. Preexisting left ear hearing loss increased in severity in service; there is no clear and unmistakable evidence that such increase was due to the natural progress of the disease. 3. The Veteran does not have Meniere's disease. CONCLUSIONS OF LAW 1. The Veteran's preexisting left ear hearing loss was aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2013). 2. The criteria for service connection for Meniere's disease are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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 notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). To the extent the Board grants entitlement to service connection for left ear hearing loss, further discussion of the VCAA is not required with respect to this claim. With respect to the claim of service connection for Meniere's disease, the Veteran was sent a letter on September 8, 2011 that provided information as to the evidence was required to substantiate the claim, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence needed to establish a disability rating and effective date. VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA medical records, a VA examination report, and the Veteran's statements. The Board has carefully reviewed such documents and concludes that no available outstanding evidence has been identified. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Hearing Loss For 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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. High frequency hearing loss in the left ear was noted on the Veteran's September 1969 entrance exam. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Since hearing loss was noted on the Veteran's entrance examination, the presumption of soundness does not attach. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). A DD 214 shows that the Veteran was a track vehicle mechanic in service. A June 1971 service treatment record reflects that the Veteran served with an artillery unit. Service treatment records indicate he was in an artillery unit, thus acoustic trauma during service is conceded. See 38 U.S.C.A. § 1154(a) (West 2002). On the Veteran's September 1969 entrance examination, the puretone threshold results, in decibels, were as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 LEFT 20 15 5 60 55 Additional audiometric testing was conducted in May 1971 in connection with the Veteran's separation examination. The puretone threshold results, in decibels, were as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 LEFT 25 15 15 / 35 The Veteran underwent audiometric testing again in June 1971. The puretone threshold results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 10 / 65 Although the audiogram conducted in May 1971 does not show worsening of the Veteran's hearing loss, the June 1971 audiogram clearly does so. The June 1971 audiogram is accompanied by a narrative stating, "Audiograms show some progression of hearing loss in left ear today. Patient in artillery unit." As there is evidence of an increase in severity during service, the presumption of aggravation applies. The Veteran underwent a VA audiometric evaluation in November 2011; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 60 70 60 Speech audiometry revealed speech recognition ability of 90 percent in the left ear. The examiner noted the Veteran's diagnosis of left ear high frequency sensorineural hearing loss at the time of his enlistment, but the examiner opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event in military service because the left ear did not show significant progression of hearing thresholds between enlistment and separation. The November 2011 VA examination is inadequate because the examiner did not discuss the June 1971 audiogram, which clearly demonstrates an increase in severity during service. Under the circumstances, the Board finds that the presumption of aggravation was not rebutted, thus service connection for left ear hearing loss is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). Meniere 's disease The Veteran asserts that he has Meniere's disease. Meniere's disease is defined as "hearing loss, tinnitus, and vertigo resulting from nonsuppurative disease of the labyrinth with edema." Dorland's Medical Dictionary, Saunders, 30th Edition, 2003 at 538. As a result of this decision, service connection is in effect for bilateral hearing loss and tinnitus. He argues that his service-connected hearing loss and tinnitus caused Meniere's disease. However, the Veteran has not been diagnosed with Meniere's disease. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The Veteran's service treatment records (STRs) are negative for any complaints or treatment of Meniere's disease. Post service VA treatment records are also negative for any complaints, or treatment for Meniere's disease. The Veteran was afforded a VA examination in February 2013. During the examination, the Veteran reported symptoms of lightheadedness, tinnitus that is high pitched in the left ear, and that "comes and goes daily." The Veteran denied nausea, denied taking medication or being on a special diet for Meniere's, and admitted that he was unsure who told him he might have the condition. The VA examiner noted the Veteran has bilateral hearing loss and tinnitus but concluded the Veteran did not have Meniere's disease because the Veteran does not have true vertigo, nor does he have low frequency hearing loss. Finally, the examiner noted no previous diagnosis of Meniere's disease. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). While the Veteran may be competent to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to be rendered competent to offer evidence on matters such as medical diagnosis of Meniere's syndrome. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). His subjective report of symptoms has been investigated by a competent medical examiner and his allegation that he has Meniere's disease is not substantiated. For service connection to be warranted there must be a current disability resulting from an in-service condition or injury. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). As the evidence does not show that he has been diagnosed with Meniere's, the preponderance of the evidence is against the claim and it must be denied. ORDER Service connection for left ear hearing loss is granted. Service connection for Meniere's disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs