Citation Nr: 1754959	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-21 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for an inner ear disability, to include as due to exposure to herbicides/Agent Orange (AO).


REPRESENTATION

Veteran represented by:	West Virginia Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1971 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Jurisdiction for the Veteran's claim has since been transferred to the RO in Pittsburgh, Pennsylvania.

The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in September 2012. A transcript of the hearing was prepared and associated with the claims file.

The Board remanded this matter in July 2015 and March 2017 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

A Supplemental Statement of the Case (SSOC), issued by the RO in September 2017, continued to deny service connection for the Veteran's inner ear disability.


FINDING OF FACT

The Veteran's inner ear disability, diagnosed sensorineural hearing loss, was not shown in service and is not otherwise related to service.


CONCLUSION OF LAW

The criteria for establishing service connection for an inner ear disability, diagnosed as sensorineural hearing loss, to include as due to exposure to AO/herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 

Additionally, the Board finds there has been substantial compliance with its March 2017 remand directives. A VA examination was conducted in March 2017 and a subsequent addendum opinion was provided to clarify the examiner's opinions. A September 2017 SSOC continued to deny service connection for an inner ear disability. 

Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claim based on the evidence of record.

II. Service Connection - Inner Ear Disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

The Veteran's claimed disability is a chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).

Where a Veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994).

For the purpose 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

The first requirement for service connection is a current disability. Prior to filing his claim, the Veteran was diagnosed with acute serous otitis media in 1999 by a private doctor. The Veteran reported pain, hearing loss, and discharge associated with this disability. In May 1999, a tube was placed to the Veteran's left ear, and in treatment records from January and February 2000, the private doctor reported that the tube was functioning properly, the ear canal was clear, the left pinna was normal, and the ear drum was essentially normal. Additionally, May 2011 VA treatment records indicate the Veteran specifically reported no symptoms in regard to his ears.

The preponderance of the evidence indicates that the Veteran did not seek consistent treatment for any problems associated with his inner ear after completing treatment related to the left ear placement until filing his claim May 2011, approximately 12 years after his diagnosis of acute serous otitis media. VA medical records from September and October 2012 indicate that the Veteran reported difficulty hearing, noting the ear felt full or plugged. He also indicated that the tube had not helped his left ear, contrary to medical reports following the May 1999 tube placement.  The September 2012 treatment provider opined the Veteran had left ear hearing loss, but October 2012 records indicate that the Veteran had essentially normal hearing, with only mild bilateral hearing loss. Maryland CNC Test speech recognitions scores were 100 percent in the left ear and 88 percent in the right ear. The Veteran reported at that time that he did not want to get hearing aids.

The Veteran was provided with a VA examination in March 2017. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss, and indicated the Veteran's treatment records suggested the initial diagnosis was in 2012. 

The Board finds that the preponderance of the evidence indicates that the Veteran's acute serous otitis media diagnosis had resolved prior to filing his claim in May 2011 because VA treatment providers and VA examiners have not found the Veteran to have any such diagnosis, and, since May 2011, the claims file does not indicate acute serous otitis media has continued since the placement of the tube in the Veteran's left ear in May 1999. Since his May 2011 claim, the only diagnosis the Veteran has received is bilateral sensorineural hearing loss; however, the Board finds that the Veteran's claim for an inner ear hearing loss could reasonably be construed to include a hearing loss disability and will proceed with review.

Veterans are presumed 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 the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).

The Board notes that the Veteran's entrance examination, conducted in February 1971, noted that the Veteran had a perforated ear drum prior to service. The remainder of the Veteran's service treatment records (STRs) do not include notations that the Veteran has a perforated ear drum. A VA examiner in March 2017 acknowledged this report and opined that this notation is not indicative of a ruptured ear drum prior to entering service. Additionally, the examiner opined that the perforated ear drum may have been incorrectly noted as the entrance examination only referenced scarring on the tympanic membrane, and the Veteran's exit examination in 1973 did not show any scarring on the tympanic membrane. Furthermore, the examiner did not find scarring the Veteran's tympanic membrane at the time of the March 2017 VA examination.  As such, the Board finds that the notation of a perforated ear drum on the entrance examination does not impact the Veteran's presumption of soundness as it relates to his ears. 

Hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331.

The Veteran contends that he began experiencing discharge and feeling that his ear was full while in service. However, at his separation examination in February 1973, audiology testing showed the Veteran's hearing was normal, and the Veteran did not report any issues related to his hearing or other symptoms related to his ears at that time. 

Additionally, the separation examination noted that the Veteran had a PULHES score of "1" for hearing and ears. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). 

The Veteran first reported difficulty hearing in February 1999, and the Veteran's private doctor diagnosed the Veteran with conductive hearing loss secondary to fluid in the ear, which was related to the Veteran's acute serous otitis media. The Veteran reported at that time that he had been experiencing these symptoms for a year and a half. After his acute serous otitis media resolved, the Veteran's treatment records are silent for complaints of hearing loss until he files a claim for an inner ear disability in 2011, and in May 2011, the Veteran reported that he had no complaints related to his ears.

As the Veteran's STRs do not indicate the Veteran had hearing loss at separation from service in February 1973 and the Veteran's claims file does not indicate complaints of or treatment for hearing loss until 1999, 26 years after discharge from service, service connection for bilateral sensorineural hearing loss cannot be presumed due to its classification as a chronic disease under 38 C.F.R. § 3.307 or based on chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b).

The Veteran asserts that his inner ear disability, diagnosed as sensorineural hearing loss, may be the result of exposure to herbicides/AO while service in Vietnam. The Veteran's military personnel records do support that the Veteran served in Vietnam from March 1972 to December 1972, and, therefore, exposure to AO/herbicides is presumed. However, VA has determined that there is no positive association between exposure to herbicides, including AO, and glaucoma, and the Veteran has not provided any medical research or any other competent evidence to support a finding that the Veteran's current sensorineural hearing loss was caused by exposure to AO/herbicides while in Vietnam. Additionally, the March 2017 VA examiner opined, in the addendum to the March 2017 report, that the Veteran's hearing loss was not related to herbicide/AO exposure, noting that there are many causes for hearing loss but medical literature does not support that a toxin, such as AO, would cause hearing loss.

When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection.

As noted above, the Veteran does have a current bilateral sensorineural hearing loss disability. However, also noted above, the Veteran did not have a diagnosis of hearing loss at his exit examination in 1973 and did not begin reporting symptoms of hearing loss until many years after service. 

Furthermore, the March 2017 VA examiner opined that the Veteran's sensorineural bilateral hearing loss was less likely than not incurred in or caused by the Veteran's service because the Veteran's hearing loss was not diagnosed until 2012, approximately 39 years after discharge from service. Additionally, May 2011 VA treatment records indicate that the Veteran specifically reported no complaints in regard to his ears or hearing. As such, service connection on a direct basis must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.



ORDER

Entitlement to service connection for an inner ear disability, to include as due to exposure to herbicides/AO, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs