Citation Nr: 1505130 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 03-22 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to an effective date prior to June 27, 2011 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to December 1978, from October 1990 to June 1991, and from August 1991 to January 1992. This appeal comes before the Board of Veterans' Appeals (Board) from October 2002 and September 2012 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2008 the Veteran testified at a personal hearing before the undersigned Veteran's Law Judge. This case was previously before the Board in March 2012 decision, where the Board reopened the claim of service connection for right ear hearing loss and remanded the case for further evidentiary development. Thereafter, in a December 2012 decision, the Board denied entitlement to service connection for right ear hearing loss. In December 2013, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion), vacating the Board's December 2012 decision and remanding this claim to the Board for readjudication. The Board remanded the claim in March 2014 for additional development consistent with the Joint Motion. That development has been completed and the case has now been returned to the Board. The issue of entitlement to an effective date prior to June 27, 2011, for the grant of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The most probative evidence of record shows that the Veteran's current right ear hearing loss disability is not related to his active military service or secondary to his service-connected tinnitus. CONCLUSION OF LAW The criteria for establishing service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letters sent in April 2003, March 2006, March 2009, and November 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The claim for service connection for right ear hearing loss was readjudicated in November 2014. The Veteran was afforded a hearing before the Board, at which he presented oral testimony in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue and the Veteran testified as to the in-service event, his symptomatology and treatment history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing, to include when the case was on appeal to the Court. The hearing focused on the elements necessary to substantiate the claim and the Veteran testified as to those elements. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Byrant is necessary. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, Social Security Administration records, and available private and VA treatment records, have been obtained. Adequate VA medical examinations were conducted and opinions were obtained. Moreover, the Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board will proceed to review the merits of the issue on appeal. Service Connection 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; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen; however, under the facts of this case, the regulatory change does not impact the outcome of the appeal. For the purposes of applying the law 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, or 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his current right ear hearing loss is related to in-service noise exposure. At his November 2008 hearing, the Veteran reported that his service in the 1970s included service in Vietnam with a combat unit, during which he was exposed to artillery and other weapons noise. He indicated that he did not notice difficulty hearing at that time, but that four or five years later, a hearing test showed that he had hearing loss. He stated that his hearing loss worsened over the years. The Veteran also asserted that his service in the 1990s exposed him to noise from tanks and trucks. His civilian work reportedly included work in the forklift industry. He said that there was noise in that work, but not as great as the noise during his service periods. In the alternative, the Veteran claims entitlement to service connection for right ear hearing loss as secondary to the service-connected tinnitus or as etiologically related to complaints of earache in service. The evidence shows that the Veteran currently has a diagnosis of right ear hearing loss that meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2014). The question in this case is whether any right ear hearing loss is causally connected to service or caused or aggravated by service-connected tinnitus. The Veteran's service entrance examination in January 1971 revealed normal hearing in the right ear. On the Veteran's October 1978 examination for separation from his first period of active service, audiology evaluation revealed pure tone thresholds in the right ear, in decibels, ranging from 25 to 40 decibels at 500 through 4000 Hertz. Between active service periods, in a VA audiology evaluation in October 1988, the Veteran attributed bilateral hearing loss to exposure to noise during his service. At that time, right ear pure tone thresholds were 10, 30, 20, 20 and 15 at 500 to 4000 Hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Records from the Veteran's active service periods in the early 1990s show audiometric testing in April 1991 and in December 1991. Both reports reflected hearing within normal limits, with pure tone thresholds at 500 through 4000 Hertz being 10 decibels or less in the right ear. Later in December 1991, the Veteran had an audiology consultation. At that time, pure tone thresholds were 15 decibels at 2000 Hertz, and 10 decibels or less at 500, 1000, 3000, and 4000 Hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. In a July 1992 examination for reserve service purposes, pure tone thresholds were 35, 25, 20 and 20 decibels at 500, 1000, 2000 and 4000 Hertz. On VA audiology evaluation in January 1995, the Veteran reported having hearing difficulties starting in the late 1970s, and having had noise exposure during service. Pure tone thresholds at that time were 35, 35, 25, 20 and 25 at 500 to 4000 Hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. In statements submitted in September and December 1999, the Veteran reported having had surgeries on his left and right ears, with placement of tubes in the ears. Records from a private ear, nose, and throat (ENT) practice reflect that in 1999 the Veteran had numerous ear problems, and underwent multiple ear surgeries. In November 1999, the preoperative diagnosis was serous otitis media and adenoidal hypertrophy. Audiological testing is not reported but the graph representation appears to show pure tone thresholds of 45 decibels or less at 500 through 4000 Hertz. The Veteran underwent a VA audiology examination in May 2000. The examiner noted that the hearing in the Veteran's right ear was within normal limits in 1995, and that reliable and consistent test results could not be obtained in the clinic since 1997. In May 2000, pure tone threshold testing was attempted, but the audiologist found that the Veteran was not consistent with his responses. The audiologist stated that the thresholds obtained at that time therefore were not reportable. In VA primary care in October 2000 and March 2001, the Veteran reported ongoing ear pain. June and September 2001 audiology consultations found test result evidence of bilateral mild to severe hearing loss. In private treatment in September 2001, the examiner found fluid present behind the right ear. On follow-up in October 2001, the physician's impression was diffuse mucosal disease of the sinuses and ears. The Veteran again underwent a VA audiology evaluation in January 2002, at which time pure tone thresholds of the right ear ranged between 40 and 90 decibels at 500 to 4000 Hertz. At the time of this examination, speech audiometry indicated speech recognition ability of 92 percent in the right ear; however, the audiologist did not feel that the scores were a true representation of the Veteran's discrimination ability. In April 2003, the Veteran reported having drainage from both ears. On audiology evaluation in April 2003, pure tone thresholds ranged between 65 and 105+ at 500 to 4000 Hertz. The audiologist reported that the pure tone thresholds seemed consistent with those obtained earlier in April 2003. The speech discrimination scores, however, were inconsistent with the scores obtained earlier in April 2003, and therefore were not reported. In an August 2003 otolaryngology note the examiner provided an assessment of tinnitus associated with a slight decrease in hearing in his right ear. Given the fluctuations in the Veteran's right ear hearing loss over the years, and conflicting medical findings, a medical opinion was sought to clarify whether the current right ear hearing loss disability is etiologically related to service or tinnitus. On these questions, there is no competent medical evidence that supports the claim. On VA audiology examination in June 2007, the examiner noted that the pure tone thresholds ranged between 35 and 90 decibels at 500 to 4000 Hertz. Speech audiometry revealed speech recognition ability of 92 percent in the right ear. The examiner noted that a VA examination in 1995 showed normal hearing in the right ear. The audiologist diagnosed moderate mixed loss in the right ear and opined, following a review of the claims file, that the Veteran's current right ear hearing loss was not due to noise exposure during service. The Board found the examiner did not fully explain the opinion and in March 2012 remanded the matter for a new examination. At the March 2012 VA audiology examination, pure tone thresholds in the right ear ranged between 50 and 105+ decibels at 500 to 4000 Hertz, and speech recognition ability was 78 percent. The audiologist confirmed that he reviewed the claims file. Based upon this review and the examination of the Veteran, the examiner concluded that the Veteran's in-service noise exposure was not the likely cause for the Veteran's current right sensorineural hearing loss. The audiologist summarized the Veteran's history, including the 1971 entrance examination, 1978 separation examination, 1991 hearing test, January 1995 hearing test, July 1992 hearing evaluation, and 1995 hearing test. The audiologist explained that while there was indicated hearing loss at separation in 1978, four examinations following 1978 showed no hearing loss disability in the right ear. The audiologist also noted that the 1978 findings showed a decrease in thresholds at all frequencies when compared to the enlistment examination results, and noted that noise exposure generally causes a high frequency hearing loss. Thus, the audiologist concluded that the 1978 examination represented a temporary shift in hearing, which later resolved as shown in the later test results and therefore not representing permanent hearing loss due to noise exposure. The audiologist concluded that the Veteran's in-service noise exposure did not likely cause hearing loss in the right ear, because unlike the left ear, there was no continued loss documented in medical progress notes. Pursuant to the Joint Motion for Remand, the Board remanded the claim for a new VA examination and opinion to determine to whether the Veteran's right ear hearing loss was secondary to his service-connected tinnitus or related to medical complaints of earache in service rather than just noise exposure. On VA audiology examination in May 2014, the examiner noted that the Veteran's induction examination in 1971 indicated normal hearing in the right ear. The separation examination was indicative of mild hearing loss in the right ear. However, subsequent examinations on active duty all indicated normal hearing in the right ear, suggesting the prior findings were consistent with temporary hearing loss, as opposed to permanent hearing loss in his right ear. The examiner further addressed the Veteran's complaints of right earache while on active duty, and indicated that typically, earaches would only cause temporary hearing changes, which was consistent with the Veteran's medical history, as four examinations following 1978 examination showed no hearing loss disability in the right ear. Moreover, hearing loss caused by earaches was typically a mixed or conductive hearing loss, as opposed to sensorineural hearing loss that the Veteran currently exhibited. However, the examiner further deferred to ENT for a medical opinion regarding his earaches and an etiological relation to his hearing loss, if any. Finally, with regard to the Veteran's service-connected tinnitus, the examiner noted that tinnitus does not cause hearing loss or worsen hearing loss. Therefore, it was not likely that the service connected tinnitus caused or worsened the Veteran's hearing loss in the right ear. In July 2014, a VA examiner conducted an ear conditions examination, to include vestibular and infectious conditions, and opined that the Veteran's right ear hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that although the Veteran's right ear showed some hearing loss for VA purposes in October 1978, this improved thereafter and audiology testing in October 1988 and 1995 documented normal hearing for VA purposes. The examiner found that after military service, the Veteran developed separate ear problems, serious otitis and adenoidal hypertrophy, which required surgery in 1999. The examiner opined that if the Veteran's right ear hearing loss was due to earache complaints noted in service, the condition would have been expected to persist and mature by 1995, and instead, audiological testing at that time was normal. The examiner further opined that right ear hearing loss was less likely than not (less than 50 percent probability) proximately due to or the result of his service connected tinnitus. The examiner explained that hearing loss was not caused or aggravated by tinnitus because tinnitus is not known to cause or aggravate hearing loss. As such, it was less likely than not that tinnitus permanently or temporarily caused right ear hearing loss or progression. The examiner concluded that although the Veteran currently had a hearing loss disability for VA purposes, there was no medical link between the currently diagnosed right ear hearing loss and service. The Board finds the opinions of the 2014 VA examiners to be the most probative evidence. The examiners reviewed the claims file and examination results, accurately reported the Veteran's medical history, considered his lay assertions, and provided adequate rationale for the conclusions reached. Moreover, the examiners' conclusions were consistent with each other, and with the other opinions of record. Accordingly, they are provided great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent and probative opinion to the contrary. While the Veteran believes that his current right ear hearing loss is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss require medical testing and medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his right ear hearing loss is not competent medical evidence. The Board finds the opinions of the 2014 VA examiners to be significantly more probative than the Veteran's lay assertions. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current right ear hearing loss is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Despite the length of time this issue has been in appellate status, there has been no competent and probative opinion submitted which links the Veteran's current right ear hearing loss to service or establishes that his right ear hearing loss is caused or aggravated by tinnitus. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C.A. § 5107(a). The Veteran has not done so. Here, the preponderance of the competent and probative evidence indicates that the right ear hearing loss noted in 1978 was a temporary shift in hearing and not the onset of the Veteran's current right ear hearing loss. The subsequent audiograms showing hearing within normal limits in 1988, 1991, 1992 and 1995 weigh against a finding of continuity of symptomatology, and the most probative evidence indicates the Veteran's current hearing loss is not related to his active service or caused or aggravated by tinnitus. Finally, as right ear hearing loss was not manifested to a compensable degree within one year following discharge from service, presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for right ear hearing loss is denied. REMAND In connection with the Veteran's appeal for an effective date prior to June 27, 2011 for the grant of entitlement to a TDIU, in September 2013 the Veteran submitted a VA Form 9 requesting a hearing before a Veterans Law Judge to be held at the local RO. However, in May 2014, the Veteran indicated that he desired to attend a Board videoconference hearing in connection with his pending appeal. Such hearing has not yet been scheduled. As Board videoconference hearings are scheduled by the RO, remand of this issue is necessary. See 38 C.F.R. §§ 20.700, 20.703, 20.704 (2014). Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Board videoconference hearing in accordance with his request. The notification of the date and time of the hearing should be associated with the file. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs