Citation Nr: 1804998 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-05 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for vertigo, claimed as secondary to hearing loss and tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had active duty service from October 1968 to April 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision in March 2015 that denied the claim for service connection for right ear hearing loss and remanded the remaining claims for additional development. The Veteran appealed the Board's March 2015 decision to the United States Court of Appeals for Veterans Claims (Court) and in a July 2016 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court vacate the March 2015 Board decision that denied entitlement to service connection for right ear hearing loss. In a July 2016 Order, the Court granted the Joint Motion. FINDINGS OF FACT 1. A left ear hearing loss disability was noted on entrance examination, and the weight of the probative evidence indicates that the Veteran's left ear hearing loss was not aggravated by service. 2. A right ear hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that it is related to service. 3. The most probative evidence is against a finding that tinnitus arose in service or for many years thereafter, and the weight of the probative evidence is against a finding that tinnitus is related to service. 4. The probative evidence establishes that the Veteran's vertigo is most likely related to hearing loss, ear surgery, and/or displacement of the stapes by the infectious ear process. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 claims and what the evidence in the claims file shows, or fails to show, with respect to each 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). The Veteran has raised no issues with the duty to notify or duty to assist, or with remand compliance. 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 a duty to assist argument). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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 38 C.F.R. § 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). In cases where a Veteran served continuously for 90 days or more during a period of war and sensorineural hearing loss or tinnitus (as organic diseases of the nervous system) 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. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Under the governing criteria, 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). If a pre-existing disorder is "noted" on entering service, in accordance with 38 U.S.C. § 1153, the Veteran has the burden of showing an increase in disability during service. If the Veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus as a result of in-service noise exposure. He seeks entitlement to service connection for vertigo as secondary to the bilateral hearing loss and tinnitus. The Veteran has current bilateral hearing loss as defined by VA regulations and exposure to acoustic trauma during service has been conceded by the RO. Service treatment records include a July 1967 pre-qualification examination, which noted the Veteran provided a history of ear problems and running ears on the Report of Medical History, explained by the examiner as "ears-after swimming." Clinical examination of the ears was normal. Audiogram revealed pure tone thresholds in the right ear of 0, 10, 5 and 0 decibels (dB) at 500, 1000, 2000, and 4000 Hertz (Hz), respectively. Findings for the left ear revealed pure tone thresholds ranging from 30 to 55 dB at those frequencies. The summary of defects noted defective hearing. These findings establish that the Veteran had left ear hearing loss disability that existed prior to service. Service treatment records also include the Veteran's October 1968 enlistment examination, which revealed pure tone thresholds in the Veteran's right ear of 0, 10, 5, and 0 dB, at 500, 1000, 2000 and 4000 Hertz (Hz) respectively, and in the left ear of 55, 40, 30 and 45 dB at those frequencies, respectively. Clinical evaluation of the ears was normal. Defective hearing was noted in the summary of defects. The Veteran again reported a history of ear trouble and running ears on his Report of Medical History, described by the examiner as "[left] swimmers ear [with] drainage in recent past." Accordingly, the Veteran's left ear hearing loss was noted on entrance. As such, the question that remains left to be resolved is whether the Veteran's right ear hearing loss is related to his in-service exposure to acoustic trauma and whether the pre-existing left ear hearing loss was aggravated by service. Although he was on a physical profile for the left ear hearing loss during service, service treatment records reveal no treatment for any ear infections or hearing loss during service. The Veteran's February 1973 separation examination showed that the pure tone thresholds in his right ear were 5, 15, 15, 15 and 10 dB, at 500, 1000, 2000, 3000 and 4000 Hz respectively. A pure tone threshold of 40 dB was noted at 6000 Hz. Pure tone thresholds in the left ear were 65, 55, 40, 45 and 50 dB at 500 through 4000 Hz, respectively. The post-service evidence of record includes a June 1995 letter from Shea Ear Clinic. It indicated the Veteran had a severe mixed type hearing loss, left ear greater than right ear, due to chronic infection in both ears all his life, with a large hole in the drum of his right ear and a collapsed atrophic drum and no hearing bones in his left ear. Impedance test of his middle ear function was abnormal; that is, his Eustachian tubes did not open and let air into his middle ears. A tympanoplasty was suggested to repair the drum and hearing bones in the right ear, after which the left ear could be repaired. Audiogram in graphic form appeared to show puretone thresholds ranging from 30 to 50 dB on the right and from 45 to 60 dB on the left, at 500 through 4000 Hz. The Veteran thereafter underwent tympanoplasty surgery for his right ear in June 1995. A July 2010 private treatment report indicates that the Veteran was diagnosed with purulent chronic otitis media and perforations of the drum in his right ear. He underwent a tympanoplasty/mastoidectomy, with posterior canal wall reconstruction in the right ear. The Veteran was afforded VA ear disease and audiological examinations in June 2011, wherein both examiners noted the Veteran's noise exposure, infections, and surgical history. Both examiners provided a detailed discussion. The ear disease examiner opined that the Veteran's hearing loss was less likely related to his military noise exposure. The audiological examiner opined that the current loss in the right ear is not consistent with noise exposure but more likely a result of his longstanding middle ear problems. As to the left ear hearing loss, the examiner opined it was not permanently aggravated by his active duty military service and was not consistent with noise exposure, but rather was the result of middle ear problems since childhood. A September 2011 private treatment note indicates that the Veteran had evidence of labyrinthitis with inflammation of the inner ear on the right side, which was consistent with a history of granulation tissue displacing his stapes and allowing a conduit in his inner ear. The Veteran underwent right transmastoid labyrinthectomy and ear canal closure with removal of middle ear cholesteatoma in October 2011. A surgical pathology report revealed clinical data of chronic otitis media. In a February 2012 letter, a private physician stated that the Veteran had been followed since August 2011 for hearing loss and vestibular dysfunction in his right ear. The physician reported reviewing medical records and noted the Veteran's report of military noise exposure working on the bombing range, flight line, and with heavy equipment. The physician stated that this type of exposure, if long enough, could certainly cause problems with noise induced hearing loss and tinnitus in both ears. It was also noted that the Veteran lost all hearing in his right ear after a bad infection in 2010 and had a profound hearing loss in the low pitches of the left side sloping to a mild to moderate loss in the mid and high pitches. In an August 2016 letter, that physician wrote a similar letter, including this time that a February 1973 separation examination showed a high tone loss at 6000 Hertz that was mild as compared to normal hearing on a previous hearing test when he entered the military. The physician also included an opinion that "given his noise exposure, it is more likely than not that the noise exposure was the ca[u]se of this initial high tone loss in his right ear. Over time, as you may know, noise-induced hearing losses can worsen, and even noise exposure years before can lead to a hearing loss later on in life." The Board remanded the left ear hearing loss claim in March 2015 in order to obtain an addendum opinion from the examiner who had conducted the June 2011 audiological examination. An addendum opinion was obtained in September 2015; however, the addendum opinion failed to adequately address some of the questions posed by the Board. The Court also remanded the right ear hearing loss claim because no explanation was provided concerning the threshold shifts in the right ear from entrance to separation or concerning the 40 decibel loss at 6000 Hz at separation. The Board sought a VA expert medical opinion in November 2016 that addressed both the left ear and right ear hearing loss claims. The requested opinion was obtained in February 2017 from VA otologist, Dr. J.M. Dr. M. provided an opinion that it is highly unlikely that the Veteran's current hearing loss is related to any in-service disease, event or injury. Dr. M. explained that there was a small shift (40 dB) in his right ear threshold at 4000 Hz between admission and discharge from the military; that a clinically significant shift would be greater than 10 dB; and that this shift at one frequency is very minor in comparison to the current hearing loss the Veteran has in the right ear. Dr. M. went on to note that the October 2011 surgery sacrificed the right ear hearing and that ultimately, this surgery was undertaken due to chronic Eustachian tube dysfunction and subsequent ear infections. In addressing the second question, Dr. M explained that the Veteran had a conductive hearing loss in the left ear due to his Eustachian tube problems; that subsequent audiograms after service showed normal bone conduction thresholds in the left ear, which indicated there was some blockage of sound energy reaching the inner ear at the time of testing; and that noise-induced hearing loss would have caused a shift in the bone conduction thresholds and inner ear loss. The Board sought clarification in March 2017 to clarify Dr. M's statement that there was a "small shift (40 dB)" in his right ear threshold at 4000 Hz between admission and discharge from the military. The Board noted that there appeared to have been a typographical error when referencing 40 dB at 4000 Hz, since the puretone threshold on the 1968 entrance examination at 4000 Hz was listed as 0 dB and the 1973 separation examination was listed as 10 dB at 4000 Hz (i.e., a 10 dB shift). The Board further noted that the records indicated that the puretone threshold of 40 dB occurred at 6000 Hz in the right ear. An addendum opinion was submitted by Dr. M. in May 2017. Dr. M. acknowledged that there had been a typographical error and that the statement should have been that there was a small shift (40 dB) at 6000 Hz between admission and discharge from the military. In regards to the question of whether this shift occurring at 6000 Hz changed the opinion on the etiology of the hearing loss, Dr. M. indicated that it did not. It was explained that the separation examination was only conducted using air conduction and that the Veteran had audiograms after his separation examination that showed normal bone conduction threshold in the right ear. Dr. M. reiterated that noise induced hearing loss would cause worsening of the bone conduction threshold. With respect to the left ear hearing loss, the Board finds the opinions provided by the June 2011 VA ear disease examiner and the otologist in February and May 2017 to be the most probative opinions of record. With respect to the right ear, the Board finds the 2017 opinions by the otologist to be the most probative evidence of record. These opinions considered the Veteran's history of middle ear problems prior to service in conjunction with the conceded in-service acoustic trauma. The February 2017 opinion's probative value is further enhanced by the expert's discussion of the Veteran's audiometric findings in service and after service, which included a discussion regarding the fact that noise-induced hearing loss would show a shift in bone conduction thresholds but the post-service audiometric findings specific to bone conduction thresholds in the Veteran's ears were normal. The 2017 otologist also provided a discussion of the threshold shifts in the right ear from entrance to separation as well as the 40 decibel loss at 6000 Hz at separation, which was the focus of the Court's remand. In other words, the Veteran's in-service exposure to noise did not aggravate the Veteran's pre-existing left ear hearing loss or cause the current right ear hearing loss because post-service bone conduction thresholds were normal, suggesting his hearing loss was not noise-induced. As the opinions were provided following review of the claims file and provided adequate rationale for the conclusions reached, the Board finds the opinions to be entitled to 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). Conversely, the opinions provided by a private physician in February 2012 and August 2016, with the latter including a discussion of the threshold shift noted in the right ear during service, are of lower probative value as they did not consider the Veteran's history of middle ear problems prior to service or discuss how noise induced hearing loss is manifested on conduction threshold testing. Thus, these opinions are afforded less probative weight. Id. The Board also notes that a February 2012 opinion concerning hearing loss was provided by a "hearing instrument specialist", who stated that it appears the Veteran's noise exposure in service has been a contributing factor in the Veteran's hearing loss. This opinion is afforded less probative weight as it is conclusory in nature and did not reflect review of the Veteran's claims file. Moreover, it was provided by a person with significantly less medical expertise and training than the otologist who rendered the 2017 VA opinion and the otolaryngologist who conducted the 2011 ear examination. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). While the Veteran believes that his hearing loss is related his in-service acoustic trauma, there is no indication 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 etiology of hearing loss is a matter not capable of lay observation, and requires medical expertise to determine. Thus, the Veteran's own opinion regarding the etiology of his hearing loss is not competent medical evidence. In sum, the preponderance of the probative evidence is against a finding that the Veteran's right ear hearing loss arose in service or for many years thereafter, or is otherwise related to service. Moreover, the most probative evidence indicates that his preexisting left ear hearing loss was not aggravated by service. Additionally, the preponderance of the evidence is against a finding of service connection for tinnitus. The Veteran is competent to report that he experienced tinnitus in service, as he did in the November 2010 VA Form 21-526 when he reported tinnitus began on April 21, 1969. Since filing his claim, however, the Veteran has been inconsistent in his report of when tinnitus onset. A March 2011 private treatment record indicates that there was a one year history of tinnitus; during the June 2011 VA ear diseases examination, the Veteran reported a five year history of constant tinnitus; and during the June 2011 VA audiological examination, the Veteran reported constant tinnitus in the right ear only that began in January 2010. None of the post-service evidence of record, to include the statements submitted by the Veteran in support of his claim, reference that he has had continuous symptoms of tinnitus since service, or within one year of his April 1973 discharge from service. As such, the Board does not find the assertion of in-service onset of tinnitus to be persuasive. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Moreover, the examiner who conducted the June 2011 VA ear diseases examination determined that the Veteran's tinnitus was related to the middle ear and Eustachian tube dysfunctional with middle ear infection, and was less likely to be related to military noise exposure. This opinion was rendered following review of the claims file and examination of the Veteran, and provided adequate rationale for the opinion provided. As such, it is afforded greater probative weight. Such opinion is also consistent with the June 2011 VA audiology examiner's opinion, who opined that the tinnitus was less likely than not the result of service as the Veteran reported it began in 2010. The Board acknowledges that the February 2012 and August 2016 letters from the private physician noted that noise exposure such as the Veteran experienced, if long enough, could certainly cause problems with noise induced hearing loss and tinnitus in both ears. However, that opinion is conclusory in nature and does not address the impact of the Veteran's ear disease on the etiology of his tinnitus. Moreover, such opinion is somewhat speculative in nature. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). Accordingly, the Board affords this evidence less probative weight. In sum, the preponderance of the competent, credible and probative evidence is against a finding that the Veteran's tinnitus arose in service or for many years thereafter, and is against a finding that the condition is otherwise related to service. Additionally, as service connection for left and right ear hearing loss is being denied, service connection for tinnitus as secondary to bilateral hearing loss is also not warranted. See 38 C.F.R. § 3.310. Finally, the preponderance of the evidence is also against a finding of service connection for vertigo. The Veteran has only asserted that service connection is warranted as secondary to the bilateral hearing loss and tinnitus. Although there is probative evidence that a diagnosis of disequilibrium/vertigo is most likely related to the Veteran's hearing loss, ear surgery, and/or displacement of the stapes by the infectious ear process, as service connection for tinnitus and hearing loss is being denied, service connection for vertigo as secondary to any of those disorders is also not warranted. See 38 C.F.R. § 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. Service connection for tinnitus is denied. Service connection for vertigo is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs