Citation Nr: 1436468 Decision Date: 08/14/14 Archive Date: 08/20/14 DOCKET NO. 11-22 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for hearing loss, to include as secondary to service-connected tinnitus. 2. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected tinnitus. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to May 1983, from October 1989 to December 1990, and from November 1991 to March 1992. He also had additional service, to include active duty for training, with the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In August 2013, the Board remanded the Veteran's claims for additional development. Pursuant to that remand the Veteran was sent notice regarding secondary service connection, additional treatment records were obtained, and a VA medical opinion was obtained. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In September 2013, the Veteran wrote to VA that he had revoked his attorney's representation. He now represents himself in this matter. FINDINGS OF FACT 1. The Veteran first developed hearing loss many years after discharge from service, the current hearing loss is not due to service, and it is not caused or aggravated by the Veteran's service-connected tinnitus. 2. The Veteran first developed Meniere's disease many years after discharge from service, it is not due to service, and it is not caused or aggravated by the Veteran's service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss, including as secondary to service-connected tinnitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385 (2013). 2. The criteria for service connection for Meniere's disease, including as secondary to service-connected tinnitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In September 2013, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claims, and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This letter also notified him how ratings and effective dates are assigned. The agency of original jurisdiction (AOJ) subsequently readjudicated the Veteran's claims in November 2013. The Board notes that the Veteran's service treatment records (STRs), VA treatment records, and private medical records have been obtained. The Veteran has been provided VA medical examinations. The Veteran has submitted private medical evidence in support of his claims. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. The Veteran has not indicated that there is any additional obtainable evidence that should be obtained to substantiate the claims. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. II. Service Connection Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss and Meniere's disease are defined as chronic diseases in section 3.309(a) under "organic diseases of the nervous system." Thus, the provisions of subsection 3.303(b) for chronic disabilities apply, and the claims may be supported by evidence of a continuity of symptomatology after service. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss and Meniere's disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because hearing loss and Meniere's disease were not medically diagnosed within one year of discharge. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 43 (1995). For the 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 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. 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 United States Court of Appeals for Veterans Claims (Court) has held that 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, 159 (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 hearing 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, 3.304 (2013); Hensley, 5 Vet. App. at 159-60. III. History and Analysis In a November 2008 letter, the Veteran reported that in October 2008, he experienced louder than normal ringing in his right ear and complete hearing loss in that ear. He said that he went to a Dr. Giddings and asked Dr. Giddings if he felt that his hearing loss was connected with his tinnitus. The Veteran said that Dr. Giddings said that it was probable that the hearing loss was due to the service-connected tinnitus. In an October 2010 letter, the Veteran reported that in service he had the loud noise exposure of operating a dump truck and heavy equipment, 8-10 hours a day, without hearing protection. He asserted that his hearing loss was caused by this military noise exposure. In March 2013, the Veteran reported having trouble hearing ever since 1990. He said that his difficulty hearing continued up until 2008 when he lost 80 percent of the hearing in his right ear. He stated that he believed that the unusual hearing loss, ringing in the ears, and feeling of fullness in both ears he experienced in 1990, during service, were beginning symptoms of Meniere's disease. In a March 2013 letter, the Veteran's brother stated that he saw the Veteran in 1990 and that the Veteran reported that had had hearing problems, ringing in the ears, fluctuating hearing, a feeling of fullness in the ears, and vertigo. He said that he told the Veteran to see a doctor, but that the Veteran refused, thinking that he might lose his active duty status. The Veteran asserted in an October 2013 letter that a VA medical opinion opining that the Veteran's hearing loss and Meniere's disease are not related to service is ignorant of all the evidence. The Veteran maintained that the symptomology dating from 1990 to present corroborates that he does have hearing loss and Meniere's disease due to service-connected events. He stated that continuous treatment records show that he continued to have the symptoms of hearing loss and Meniere's disease. He pointed out that Dr. DeTar, an ENT, has been treating him since 2009, and that he opined that his current hearing loss is more likely related to his military noise exposure. The Veteran reported that Dr. DeTar had reviewed the Veteran's military records and opined that the Veteran's symptoms since 1990 were likely symptoms of Meniere's disease and hearing loss. He further pointed out that a 2009 VA examiner stated that the Veteran had long term mild hearing loss in both ears, shown in the Veteran's military records. The Veteran submitted a December 2008 opinion from a Dr. Bash. Dr. Bash noted that he had reviewed the Veteran's service medical records, post service medical records, MRI imaging reports, the Veteran's lay statements, the (VA) medical opinions dated in 2002, and 2008, and that he had reviewed the medical literature. Dr. Bash stated that he had spoken to the Veteran, but not examined the Veteran. Dr. Bash opined that the Veteran's current balance problems/vertigo and right ear hearing loss are due to Meniere's disease. He further opined that the Meniere's disease was caused by the service time exposure to loud noise from 1983 to 2002. Dr. Bash noted that the Veteran had noise induced hearing problems from his service time experiences, as he has been granted service connection for tinnitus based on service noise exposure. He further stated that the Veteran's records did not contain another more likely cause for his vertigo and he stated that the Veteran had no loud noise exposure outside of military service. An April 2012 examination report by Dr. DeTar includes an assessment of Meniere's disease and sensoneural hearing loss. Dr. DeTar opined that the Veteran's hearing loss in the left ear was related to the Veteran's active duty. Although the Veteran has reported that Dr. Giddings told him his hearing loss was a result of his service-connected tinnitus, the Board notes that none of Dr. Giddings's treatment records contain any such opinion. Dr. Giddings noted in October 2008 that the Veteran had sudden hearing loss and subjective tinnitus. Furthermore, the Board does not find the Veteran's statements to be credible. The Veteran has reported hearing loss ever since 1990, when he was in service. He has also reported Meniere's disease symptoms ever since service. The Board finds that these statements are not credible because the contemporary medical evidence indicates otherwise. The Veteran filled out Reports of Medical History (RMH) for the Army and the National Guard in September 1990, March 1994, and November 1995. On these forms, the Veteran denied ever having had hearing loss or dizziness. Furthermore audiometric examinations performed in September 1990 (Army), March 1994 (National Guard), and August 2002 (VA) revealed that the Veteran had normal hearing in both ears. Consequently the Veteran's assertions since 2008 of having had hearing loss and Meniere's symptoms ever since service are not credible and therefore are of no probative value. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Furthermore, to the extent that the Veteran and his brother now contend that he did not speak up because of his fear of being removed from active duty, the Board also finds these statements lack credibility. The service treatment records document treatment for several maladies throughout his active duty. Thus, the contemporaneous records are more probative than the Veteran's statements long after the fact in pursuit of compensation benefits. The Board recognizes that the service treatment records do show that the Veteran had an otitis media in May 1984, and that he reported that his ears felt congested in March 1990. The Board notes that the complaints of congested ears was attributed to pharyngitis, and there were no additional complaints/findings of otitis media or ear congestion during service. The Board finds that there is no evidence that these in-service ear complaints were anything but acute, and that they resolved without any residual disability. As noted above, the Veteran denied any ear problems in September 1990, March 1994, and November 1995. A December 2008 VA audiological evaluation showed that the Veteran had right ear hearing loss and normal hearing in the left ear. On VA C&P audiometric examination (performed by Spokane Audiology Clinic) in April 2009, the Veteran was again shown to have normal left ear hearing acuity and right ear hearing loss. The audiologist noted that the Veteran's right ear hearing loss occurred suddenly in 2008. She noted that this type of hearing loss is atypical of hazardous noise exposure, and opined that the Veteran's hearing loss is not related to his military noise exposure. The Veteran's records were reviewed by a VA otolaryngologist in December 2009. He provided a medical history of the Veteran's ear disabilities. He noted that since the onset of his sudden hearing loss in October 2008, the Veteran has been treated as though he has Meniere's disease, experiencing episodes of dizziness apparently once or twice per month. He noted that in December 2008, Dr. Bash opined that the Veteran's current balance problems, vertigo and right ear hearing loss were due to Meniere's disease which is caused by the Veteran's service-time exposure to loud noise. The VA otolaryngologist thought that this was incorrect. He noted that by definition, tinnitus is associated with Meniere's disease predominantly because of the increased pressure in the cochlear labyrinthine system. He stated that tinnitus however has never been felt to be a cause of Meniere's disease, since it is a common symptom experienced by approximately 20 percent of the population, very few of which develop Meniere's disease. The VA otolaryngologist opined that the Veteran had sudden idiopathic neurosensory hearing loss, which he noted was also the opinion of the examining audiologist in April 2009. He noted that the cause of sudden idiopathic neurosensory hearing loss is sometimes very difficult to explain since it is felt that a viral cause can play a part in causing this problem, although Meniere's disease can be occasionally felt to be a problem especially a low-frequency hearing loss which improves with treatment and/or fluctuates as time goes on can be documented, which the VA examiner did not see documented on this record. The VA otolaryngologist opined that the Veteran's sudden idiopathic neurosensory hearing loss and/or Meniere's disease was a spontaneous event and not related to his service-connected tinnitus. The Veteran's records were reviewed by an audiologist (with the Spokane Audiology Clinic) for a VA audiology opinion in October 2013. The audiologist opined that the Veteran's current hearing loss and Meniere's disease is less likely than not related to his military service noise exposure as the Veteran had normal hearing sensitivity in ears at the time of his August 2002 VA audiometric examination. She noted that according to the American College of Occupational and Environmental Medicine, hazardous noise is no longer a threat to hearing once the exposure to noise is discontinued. The audiologist noted that all of the available evidence indicates that the Veteran's right ear hearing loss had a sudden onset in 2008, and that the configuration of the Veteran's hearing loss is not consistent with hearing loss as a result of exposure to hazardous noise. She went onto state that tinnitus can be a symptom of hearing loss and it is a symptom associated with Meniere's disease, however tinnitus is not a cause of hearing loss or of Meniere's disease. She opined that therefore the Veteran's hearing loss and Meniere's disease are less likely than not caused by the Veteran's service-connected tinnitus. The October 2013 audiologist further noted that for VA purposes, aggravation means that the disability has permanently worsened beyond the natural progression due to the service-connected disability. She noted that tinnitus is a known symptom that can be associated with hearing loss and it is a symptom associated with Meniere's disease, therefore, the Veteran's service-connected tinnitus is less likely than not to have worsened the Veterans hearing loss and Meniere's disease beyond their normal progression. The Board finds that the April 2012 opinion of Dr. DeTar is of little probative value. Dr. DeTar provided no reasoning for his opinion that the Veteran had hearing loss due to his military service. Furthermore, Dr. DeTar incorrectly stated that it was the Veteran's left ear that had hearing loss, when it is the Veteran's right ear that had hearing loss. The Board also finds that the December 2008 opinion of Dr. Bash is of little probative value. Dr. Bash did not discuss the fact that the Veteran had normal hearing during service and for many years after discharge from service. Furthermore, he did not discuss the fact that when the Veteran was first diagnosed with Meniere's disease in October 2008, none of the clinicians at that time related Meniere's disease to the Veteran's noise exposure during service or to the Veteran's service-connected tinnitus. The Board finds that Dr. Bash did not discuss medical evidence that was against his opinion and he did not provide persuasive reasoning to support his opinion that the Veteran currently has Meniere's disease that developed as a result of noise exposure during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board finds that the most probative evidence of record consists of the April 2009, December 2009, and October 2013 VA medical opinions. The VA clinicians provided an accurate history of the Veteran's hearing loss and Meniere's type symptoms, and provided supporting rational for their opinions. For example, the April 2009 audiologist noted that the Veteran's sudden right ear hearing loss in 2008 is atypical of hazardous noise exposure, which supported her opinion that the Veteran's hearing loss is not related to military noise exposure. The December 2009 VA otolaryngologist reviewed the Veteran's medical history, including the Dr. Bash opinion, and opined that the Veteran had idiopathic neurosensory hearing loss and/or Meniere's disease that was a spontaneous event and not related to the service-connected tinnitus. He noted that Meniere's disease is not caused by tinnitus. Finally, as reported above, the October 2013 audiologist opined that the Veteran's hearing loss is not the result of exposure to hazardous noise, she opined that the Veteran's hearing loss and Meniere's disease are unlikely to be caused by the Veteran's service-connected tinnitus, and she opined that it was less likely than not that the Veteran's hearing loss and Meniere's disease have been aggravated by the Veteran's service-connected tinnitus. In support of her opinions she noted that the Veteran had normal hearing in August 2002 (years after discharge from service), that the Veteran's sudden hearing loss was not of the type that is consistent with exposure to hazardous noise, and that tinnitus is a known symptom hearing loss and Meniere's disease, but is not known to cause or aggravate hearing loss or Meniere's disease. As shown above, the most probative evidence of record reveals that the Veteran did not develop hearing loss during service or for many years after discharge from service. Additionally, the most probative evidence of record reveals that the Veteran's current hearing loss and Meniere's disease is not related to that Veteran's loud noise exposure during service or to any other aspect of service. Furthermore, the most probative evidence of record reveals that the Veteran's hearing loss is not caused by or aggravated by the Veteran's service-connected tinnitus. Consequently, the preponderance of the evidence is against the Veteran's claim and service connection for hearing loss and Meniere's disease, including as secondary to service-connected tinnitus, is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss, to include as secondary to service-connected tinnitus, is denied. Service connection for Meniere's disease, to include as secondary to service-connected tinnitus, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs