Citation Nr: 1339359	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  10-31 509	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUES

1.  Entitlement to service connection for a low back disorder.

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

3.  Entitlement to service connection for a disability manifested by vertigo, including Meniere's disease.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Appellant and his daughter


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to September 1967.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO).

In March 2013, in support of these claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.


FINDINGS OF FACT

1.  Although the Veteran sustained a back strain and was noted to have recurrent back pain after heavy lifting during his service, his current low back disability, degenerative joint and disk disease of the lumbar spine, is not shown to be related or attributable to that back injury and pain in service.

2.  His left ear hearing loss was not manifested during his service or for many years after it concluded and is not shown to be related or attributable to his service.

3.  The same is true for disability manifested by vertigo, as it, too, was not manifested during his service or for many years after it concluded and is not shown to be related or attributable to his service.



CONCLUSIONS OF LAW

1.  The Veteran's current low back disorder is not the result of disease or injury incurred in or aggravated by his military service and may not be presumed to have been incurred during his service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).

2.  His left ear hearing loss was not incurred in or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

3.  Disability manifested by vertigo, including Meniere's Disease, is not the result of disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).   Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).

March 2004, August 2007 and October 2007 letters explained the evidence necessary to substantiate these claims and VA's and the Veteran's respective responsibilities in obtaining this necessary supporting evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the latter two letters explained how a "downstream" disability rating and effective date are determined, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), so addressed these additional elements of these claims for service connection.  All of the letters were provided to the Veteran prior to initially adjudicating his claims in January 2008, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With regards to the duty to assist, the claims file contains his service treatment records (STRs), but also his post-service VA treatment records, private treatment records, reports of VA examinations, and his personal assertions as well as those of his daughter and representative - including during the videoconference hearing before the Board.

The Board also has considered whether a VA medical examination is necessary for proper adjudication of the Veteran's claim for disability manifested by vertigo.  But as explained in more detail below, there is no indication of manifestation of this disability until 2006, despite him and his daughter maintaining relevant symptoms were earlier shown or all but evident.

In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that an examination and medical nexus opinion are required in response to a claim of entitlement to service connection when there is:  (1) evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, occurred that would support incurrence or aggravation; (3) an indication the current disability may be related to the in-service event, injury, or disease; but (4) insufficient evidence to decide the claim.  See also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013).  

The third prong, which requires that the evidence of record "indicate"" that the claimed disability or persistent or recurrent symptoms "may be" associated with the established event, injury, or disease in service is a "low threshold".  McLendon, at 83.  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (Medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be" associated with the claimant's service).

This is not to say or suggest however that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  Indeed, if such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception.

The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified, however, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  

Furthermore, the Veteran is competent even as a layman to proclaim having experienced relevant symptoms ever since his service, even if not also competent to say they necessarily are the result of his military service and the claimed disorder.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Still, though, generally speaking, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone.  See Duenas, 18 Vet. App. at 519.  See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (Where the Board makes a finding that lay evidence regarding an in-service event, injury or disease is not credible, a examination is not required).

Here, there is no credible evidence of an event, injury or disease in service or manifestation of an organic disease of the nervous system in the first post-service year (even assuming that Meniere's disease or other disability manifested by vertigo qualifies as such an organic disease - see 38 C.F.R. §§ 3.307, 3.309).  There also is no evidence indicating the current disability manifested by vertigo may be related to the Veteran's service, other than his written and oral testimony to this effect and that of his daughter and representative.  The Veteran has affirmatively asserted that such a relationship in fact exists, but without other suggestive evidence such as credible evidence of continuity of symptomatology or suggestive medical evidence.  His bare assertion does not meet even the low threshold of indicating the current disability may be related to his service.  Thus, an examination is unnecessary to decide this claim.

Regarding his videoconference hearing before the Board, 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, to this end, during the Veteran's hearing all parties agreed as to the issues on appeal.  The parties also generally discussed evidence contained in the record and the sources of treatment the Veteran had received for the disabilities he is claiming.  There is no indication there is any outstanding, obtainable evidence pertinent to these claims.  Thus, the Board finds that the duties under Bryant have been met.  Further, to the extent there were any shortcomings, the Veteran was not prejudiced because of the lack of any further obtainable pertinent evidence.  Moreover, in their hearing testimony he, his daughter, and representative evidenced their actual knowledge of the type of evidence and information needed to substantiate these claims.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating these claims based on the current record.

II.  Analysis

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Certain listed, chronic disabilities, including sensorineural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 
10-percent disabling) within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

For the showing of chronic disease in service or within the presumptive period following 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 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 when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim.  38 C.F.R. § 3.303(b).  But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Arthritis is one of these listed diseases, as is sensorineural hearing loss, though not hearing loss in general.  38 C.F.R. §§ 3.307, 3.309(a), Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (indicating that sensorineural hearing loss is an organic disease of the nervous system).  Conversely, Meniere's Disease has not been affirmatively recognized as one of these per se chronic diseases.

Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing entitlement to direct service connection generally requires:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or a disease existed before acceptance and enrollment into service and (2) was not aggravated by such service.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  See also VAOPGCPREC 3-2003 (July 16, 2003).  This statutory and regulatory provision is referred to as the "presumption of soundness."  Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

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 also 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Low Back Disability

The evidence clearly shows the Veteran has a current low back disability, diagnosed as degenerative disk disease and degenerative joint disease (DDD/DJD).  Degenerative joint disease (DJD) is arthritis, whereas degenerative disc disease (DDD) is another type of impairment.

The evidence also shows the Veteran experienced low back problems in service.  His STRs show he reported a prior pulled muscle in his back on his July 1965 report of medical history at induction into service.  During his July 1965 induction examination, however, his spine was found to be normal with no abnormalities referable to his low back.  Consequently, his low back must be considered to have been sound on entry into service, as there is not clear and unmistakable evidence that he had a pre-existing low back disability, as opposed to simply a prior 
self-limiting back injury, upon entry into service.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The presumption of soundness attaches where there has been an induction examination during which the disability about which the Veteran later complains was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulations provide expressly that the term detected ("noted") denotes "[o]nly such conditions as are actually recorded in examination reports," 38 C.F.R. § 3.304(b), and that mere "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).

Subsequently, once in service, the Veteran was seen for a back problem on April 11, 1966.  It was noted that he had experienced acute back spasms following an attempt at pushing a truck, with pain beneath the left scapula.  The pain was eased by a 10 cc injection of Robaxin and the diagnostic impression was acute spasm of the muscles in the back.  He was seen again for lower back pain on April 23, 1966 and Aspirin was prescribed, along with another medication and light duty.  On his June 1967 report of medical history at separation, it was noted that he had had recurrent episodes of back pain following heavy lifting.  But during the objective clinical portion of his June 1967 separation examination, his spine was found to be normal.  Thus, given the negative finding at separation and only the somewhat limited notation of a history of pain after heavy lifting, it is not shown he necessarily had chronic (meaning permanent) low back disability during his service.  See, e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).  It certainly is at least legitimately questionable whether he had chronic or permanent low back disability during his service, even accepting that he had relevant injury and complaints during his service.

There equally is no evidence or allegation of low back arthritis occurring during service or in the first post-service year, meaning initial manifestation of this condition to the required minimum compensable degree of at least 10-percent disabling by September 1968 since his service ended the year prior, in September 1967.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309.

The remaining question, then, is whether there is the required nexus or correlation between his current low back disability (specifically, his DDD and DJD) and the low back problems he experienced in service, even accepted they occurred.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  Unfortunately, it is in this equally critical regard that the evidence is less favorable to his claim insofar as establishing this required linkage.

The post-service medical evidence of record first shows treatment for back strain in December 1994 (approximately 27 years after service) with subsequent private MRI findings of degenerative changes and disc disease in August 1999.  Also, in a June 2010 VA medical opinion, a VA physician, after reviewing the claims file, determined that it was more likely than not that the degenerative changes in the Veteran's spine were age-related rather than service-related.  The physician indicated the episodes of low back pain documented in the STRs were most consistent with back strain type complaints and that muscle strains of the back and other areas of the body were self-limited and were not expected to cause problems over many years or for the rest of one's life.  Lumbar strain was considered to be a self-limited soft tissue injury to the spine and disk disease was a common problem in the population at large that increased in prevalence with increasing age.  The physician indicated there was no evidence that lumbar strain causes, predisposes to, or accelerates the development of degenerative spine and disk disease.  As such it was unlikely that the lumber strain in service was responsible for the current degenerative lumbar disease.

There is no medical opinion to the contrary (i.e., an opinion tending to indicate that the current degenerative disk and joint disease of the lumbar spine is related to low back strain in service).  Thus, the weight of the medical evidence is clearly against a nexus between the Veteran's current low back disability and the problems he experienced in service, again, even accepting he had them.

He maintains that the degenerative disease of his lumbar spine is due to the 1966 injury in service.  He also testified during his March 2013 videoconference hearing before the Board that, ever since that injury in service he has experienced "spells" (i.e., periodic episodes) of low back pain.  He is competent to report this continuity of symptomatology (albeit occurring on a periodic basis).  However, as noted, the April 2010 VA physician, after reviewing the claims file, specifically found that the Veteran's current low back disability, degenerative disc and joint disease, was more likely than not age-related and unlikely related to the muscle strains experienced during service.  As the examiner supported this finding with an adequate rationale (i.e., that the strain experienced by the Veteran during service would be expected to be self-limiting), the weight of the evidence is against a relationship or correlation between the low back problems in service and the current low back disability, despite the Veteran's assertions of continuity of symptomatology (occurring on a periodic basis).  In short, the weight of the evidence indicates that, although he experienced some back problems in service, they are not the cause of those he now has.  Moreover, it is permissible for the Board to give more probative weight to the VA compensation examiner's opinion against this association than to the Veteran's written and oral lay testimony tending to support this notion.  See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  This is because degenerative disc and joint disease is not a simple condition, rather complex, so the Veteran's unsubstantiated lay testimony is insufficient to establish the required attribution of this disease to his service, including to an event, disease or injury during his service.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).

The Veteran also reported during his March 2013 videoconference hearing before the Board that he was stabbed in his back during his service, with the object just missing his spine, sometime after his April 1966 injury.  He indicated that he went to the medical clinic after the stabbing and the examining physician determined that the wound was not big enough to cause any damage.  Thus, the physician simply put a band aid on it and gave the Veteran a shot.  This episode is not documented in the STRs and was not considered by the April 2010 VA physician in formulating his etiology opinion.

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.).  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  So while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Consider also that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where, as here, the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).  Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). 

Accordingly, the Board finds that the April 2010 VA physician, through his review of the claims file, including the STRs, accurately understood the history of the Veteran's low back pathology.  Additionally, even if the stabbing did occur as the Veteran alleges, given the nature of the injury, the April 2010 VA physician's opinion still may be afforded substantial probative weight even though the physician was unaware of its occurrence.  (That is, by the nature of the Veteran's description, the reported injury was self-limiting as the physician who treated the wound informed him that no significant damage had been done).

In sum, as a chronic low back disability was not shown in service; as arthritis was not shown by X-ray in the first post-service year, certainly not to the required minimum compensable degree of at least 10-percent disabling (see 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5235-5243); and as current degenerative disk and joint disease is not shown to be related to service, the preponderance of the evidence is against the claim and it must be denied.  Alemany, 9 Vet. App. 518 (1996).


Left Ear Hearing loss and Disability Manifested by Vertigo

The evidence suggest the Veteran has sufficient hearing loss in his left ear to be considered a ratable disability by VA standards, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  This is evidenced by VA treatment records showing a diagnosis of sensorineural hearing loss in this ear as early as May 2004 and private hearing testing records showing progressively worse left ear high frequency hearing loss during the immediately preceding years from 1993 to 2000.

The evidence also reasonably shows that he has a disability manifested by vertigo, as evidenced by VA otolaryngology records showing a diagnosis of Meniere's Disease at some points during the pendency of this appeal.  (Notably, later VA medical records call the Meniere's Disease diagnosis into question, but overall a disability manifested by vertigo has been shown at least during part of the appeal period.  And this is all that is required to show the existence of the claimed disability, that is, that it have been shown at some point since the filing of the claim, even if no longer evident or now resolved.  See McCLain v. Nicholson, 21 Vet. App. 319, 321 (2007)).

Neither left ear hearing loss nor a disability manifested by vertigo, however, was shown during the Veteran's service.  Notably, the STRs are entirely unremarkable for any complaints or findings of hearing loss, Meniere's Disease, vertigo or other similar symptomatology.  At his July 1965 entrance examination, the Veteran's left ear hearing was found to be within normal limits and, similarly, at his June 1967 separation examination, his left ear hearing was also found to be within normal limits.  Additionally, on his June 1967 report of medical history, he did recount prior hearing loss, but that report was clarified in the physician's summary as referring to a right ear hearing loss occurring prior to service, so not involving the left ear now at issue in this appeal.  The Veteran's military service ended in September 1967.


Post-service, the earliest evidence of hearing loss is in the report of an August 1993 private hearing test showing high frequency loss in the left ear.  But at the conclusion of a September 2012 VA audiolgical examination, so after evaluating the Veteran and reviewing the claims file, the examining VA audiologist concluded that any current left ear hearing loss was not the result of military noise exposure, so unrelated to the Veteran's service.  In support of this opinion, this commenting audiologist observed that left ear hearing was normal on both entrance and separation audiograms with no decrease in hearing noted.  The Board finds this opinion adequate as it was based on a review of the claims file, including the specific hearing test findings in service, and provided the required explanatory rationale (i.e., that there was no change in the Veteran's left ear hearing during his service).  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).  It is clear from the record that the audiologist, "based on her clinical experience and evidence found in the military medical records" (i.e., the lack of evidence of left ear hearing loss during service) concluded that the Veteran's current left ear hearing loss was not the result of noise exposure in service.  Monzingo, 26 Vet. App. 97, 105.  There is no medical opinion of record to the contrary (i.e., an opinion tending to indicate that the Veteran's current hearing loss is related to noise exposure during his service).  Although the Veteran has generally asserted that his current hearing loss in this ear was caused by noise exposure during his service, as a layman without any demonstrated, specialized knowledge concerning the etiology of hearing loss, his lay assertion is afforded only minimal probative weight.

He testified that, at the time of his discharge from service, he was informed that in order to leave his post he had to pass the hearing test.  He indicated that he informed the hearing tester that he could not hear the tones and that the tester then helped him pass the test by telling him when to press the appropriate buttons.  The Board does not find this assertion credible.  Notably, in her September 2012 VA audiological evaluation report, the audiologist indicated that, despite being able to respond to most of her interview questions, the Veteran did not respond to any puretone stimuli or recorded words during testing.  Consequently, she found that 

the results of his hearing testing by her were invalid.  In other words, he did not seem to have any difficulty hearing her when he did not suspect he was being tested, but claimed not to hear much of anything once he was officially being tested.  That tends to suggest he was trying to compromise or manipulate the results of his testing in a light most favorable to him and his claim, which in turn tends to undermine his credibility.  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, but also the claimant's demeanor when testifying at a hearing when he has testified or, here, his behavior during the course of a VA compensation examination.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

Also, during October 2006 VA audiological testing, the Veteran's hearing test results showed poor response reliability and poor test validity since his responses in conversation during a previous visit and then currently (with reprogrammed hearing aides in place) were not compatible with the pure tone and speech test results elicited, and since he affirmatively reported that he heard better in his left ear but no ear difference was noted during behavioral testing.  Additionally, January 2009 hearing testing was similarly found to be invalid since his response in conversation was inconsistent with his behavioral testing.  Thus, given his clear pattern of unreliability during testing, along with his lack of credibility concerning the time of onset of his vertigo (explained below), his assertions that he could not hear the tones presented to him during his separation examination hearing test and that he was actually aided in "passing the test" by the individual who administered it are not credible.  In short, because he is shown to be unreliable in reporting what he can and cannot hear during testing, and because he is also shown to be unreliable in reporting when his vertigo began, there is no basis for crediting his self-serving assertion that he could not hear anything during his hearing testing at separation.  (The Board also notes there is no evidence in the record tending to corroborate this assertion).  Also, inasmuch as he is claiming that he experienced temporary hearing loss after weapons firing during service and hearing loss soon after service, including during the first post-service year, this is also not deemed credible in light of his specifically found unreliability.  Instead, the Board credits the findings shown by the medical evidence, which indicate only that hearing loss was shown as early as 1993.

Additionally, it appears that in considering the Veteran's history of noise exposure, the VA audiologist did not find that the Veteran had significant exposure during his service, indicating that he worked as a supply specialist and stock clerk.  This finding is contrary to some of the Veteran's assertions.  During the March 2013 Board hearing and an earlier October 2009 Board hearing, the Veteran reported significant noise exposure, including lying beside M-16 machine guns firing; sergeants screaming as loud as they could in his ear during basic training; mines exploding close to him; having machine guns fired at him; and being exposed to mortar fire.  Notably, his service personnel records show that, after completing basic training, his principal duties included supply clerk, wireman, repair parts clerk (supply) and general supply specialist.  Thus, the September 2012 VA audiologist was generally accurate in finding that the Veteran served in a supply function, which generally would not tend to entail significant noise exposure.  Also, given his general lack of credibility in reporting the nature and timing of his hearing loss and the timing of his vertigo; given that his reports of exposure to various weapon's noise have been vague in nature (i.e., he generally did not identify specific incidents); given that he did not serve in a combat zone; and given that there is no documentation or other outside corroboration of any actual incident of noise exposure during his service, the Board does not find credible his self-report of having experienced significant noise exposure during his service.  Thus, the Board credits the general finding of the VA audiologist that significant noise exposure in service is not shown, based on the Veteran generally serving in a supply function and there being no actual recorded incidents of such exposure.  Moreover, although the Veteran did work for a few months as a wireman, which conceivably could have entailed some noise exposure, depending on the specific nature of the work, he has not affirmatively reported any significant noise exposure related to that work, so in that particular capacity.  Further, even assuming his reports of noise exposure could be found credible, the VA examiner's finding concerning the etiology of the Veteran's hearing loss was not predicated on the extent of noise exposure during his service but instead on his left ear hearing remaining within normal limits during his service, thus indicating that current hearing loss was not caused by any noise exposure in service.

Regarding disability manifested by vertigo, the earliest medical evidence of record of such disability is from 2006, with a diagnosis of possible Meniere's disease made in November 2006 followed by a more definite diagnosis with medical treatment and subsequent questioning of the diagnosis.  The Veteran has asserted that he started experiencing vertigo right after he separated from service and was treated for it with meclizine during that time.  However, during a November 2006 VA ear, nose and throat (ENT) visit, he reported episodes of vertigo just over the past two months and that he had never had such episodes prior to that time, certainly then none dating back to his time in service.  As this report was generated with a view towards ascertaining his then-state of physical fitness, the Board credits it over his later, self-serving report that he actually began having symptoms of vertigo right after separation from service.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S:  AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule of Evidence 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition made to medical providers on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  


For this same reason, the Board also does not find credible the Veteran's daughter's equally self-serving testimony that he had experienced dizziness for as long as she could remember, dating back to when she was little.  Accordingly, the evidence indicates the Veteran's vertigo began in 2006 or thereabouts, so not until approximately 39 years after the conclusion of his military service.  A lengthy interval of time between service and initial post-service manifestation of a "disability" for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that, in the appropriate circumstance, VA adjudicators may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder).

Aside from all of that, there is no medical opinion of record relating the current disability manifested by vertigo/Meniere's disease to the Veteran's military service and, as already explained, a VA examination is not warranted to assist in making this critical determination.  Although the Veteran contends that his current disability manifested by vertigo/Meniere's disease is related to his service, as a layman with no specified knowledge of the etiology of such disability, he is not competent to provide an opinion concerning such a medical nexus.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Consequently, given that there is no competent medical evidence of vertigo or disability manifested by vertigo until many, many years after service and no competent evidence of a nexus between the current disability manifested by vertigo and the Veteran's service, the Board must conclude that the weight of the evidence is against a finding of service connection on either a direct or presumptive  basis (even assuming that Meniere's disease could be considered an organic disease of the nervous system thus potentially allowing for 

service connection for it on a presumptive basis as a chronic disease).  38 C.F.R. § 3.303, 3.307, 3.309; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The preponderance of the evidence is against this claim and it, too, must be denied.  Alemany, 9 Vet. App. 518 (1996). 


ORDER

Service connection for low back disability is denied.

Service connection for left ear hearing loss is denied.

Service connection for disability manifested by vertigo, including Meniere's Disease, is denied.



______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs