Citation Nr: 1805963 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 02-08 706A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for Meniere's disease with hearing loss and tinnitus. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and her Ex-Husband ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2001 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2005, the Veteran and her ex-husband testified at a video hearing before the Board. A transcript of that hearing is of record. In July 2005, the Board, in part, found that new and material evidence had not been received to reopen the claim of entitlement to service connection for Meniere's disease with hearing loss and tinnitus. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By order dated January 2007, the Court granted a Joint Motion for Remand, vacating the July 2005 decision for that issue and remanding the case for compliance with the terms of the Joint Motion for Remand. The Board remanded the issue in June 2007 and September 2009. In May 2012, the Board again denied the claim to reopen. The Veteran appealed the May 2012 decision to the Court. In November 2013, the Court issued a Memorandum Decision, vacating the May 2012 decision for that issue and remanding the case for compliance with the terms of the Memorandum Decision. In May 2014, the Board found that new and material evidence had been received. The claim was therefore reopened, remanded for further development, and subsequently denied by the RO. In January 2016, the Board again remanded the claim for further development and a VA examination. The RO substantially complied with the January 2016 remand directives and again denied the claim. The claim is again before the Board. FINDING OF FACT The Veteran's current diagnosis of Meniere's disease with hearing loss and tinnitus was aggravated during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for Meniere's disease with hearing loss and tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted 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. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304 (b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304 (b)(1). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C.A. § 1154; 38 C.F.R. § 3.306(a). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that a lay person is competent to diagnose varicose veins because the presence of varicose veins does not require a determination that is "medical in nature"); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation"). Factual Background and Legal Analysis A review of the Veteran's service treatment records show indications of Meniere's disease, hearing loss, and tinnitus. In October 1974, the Veteran's entry physical had the following audiological results: 500 HZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz (1000Hz-4000Hz) Right 5 dB 40 dB 50 dB --- 60 dB 50.00 dB Left 5 dB 5 dB 5 dB --- 0 dB 3.33 dB No Maryland CNC word test was performed. See February 2008 service treatment records. In February 1977, a medical consultation sheet noted that the Veteran had a 6 year history of hearing loss. See November 2003 military personnel records. A February 1978 medical note indicated that letter communications from the Veteran's civilian physicians verified that the Veteran's hearing loss had its onset prior to entry on active duty. The medical note indicated a diagnosis of Meniere's disease. The Veteran also was noted to have vertigo, tinnitus, and disequilibrium at this time. A May 1978 medical entry indicated that the Veteran had a history of Meniere's disease since age 16, as well as a history of hearing loss, and tinnitus. The Veteran also suffered from vertigo attacks in 1978. See February 2008 service treatment records. In May 1978, the Veteran had the following audiological results as she left active duty: 500 HZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz (1000Hz-4000Hz) Right 65 dB 70 dB 55 dB 55 dB 65 dB 61.25 dB Left 15 dB 10 dB 15 dB 20 dB 20 dB 16.25 dB With respect to the Maryland CNC word test, the Veteran scored 56 percent for the right ear, and 96 percent for the left ear. See February 2008 service treatment records. In February 2001, a VA medical examiner reviewed the Veteran's medical records, but did not conduct an in-persona examination. He opined that it was almost impossible to say whether the progression of the Veteran's Meniere's disease was more than would be expected with the average case of Meniere's disease. The VA examiner stated that the best he could was to say that the Veteran definitely had significant symptoms of Meniere's disease when the Veteran was in service and that she had a surgical procedure to try to control the symptoms of vertigo. The VA examiner explained that Meniere's disease is a very, very labile disease and could vary from very mild attacks with virtually no symptoms to being a completely debilitating disease in which the patient would be unable to function. The VA examiner stated that this degree of variation occurs in different individuals and can even vary in single individuals from time to time. In January 2005, the Veteran testified at a Board hearing along with her ex-husband. The Veteran stated that she did not know that she had Meniere's disease when she entered service, but that she was first diagnosed with it after she joined the military. She stated that she believed that the surgery performed on her ears in service in February 1978 to correct her Meniere's disease aggravated the condition. The Veteran testified that the surgery did not fix the ear problem but rather the surgery aggravated it, making her dizzy, nauseated and having to vomit. She stated that she would have to be admitted to the hospital due to this condition. Her ex-husband likewise testified that he observed that the Veteran's hearing had worsened after her in-service ear surgery. In a June 2014 VA medical opinion without examination, the VA examiner stated that the Veteran's Meniere's disease with hearing loss clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service, injury, or illness. The VA examiner explained that the Veteran's Meniere's disease pre-existed service and that the Veteran's Meniere's disease actually seemed to improve after surgery, noting that there were multiple complaints and visits for symptoms specific to Meniere's prior to the surgery and that these complaints lessened/resolved after surgery. The June 2014 VA examiner also opined that the Veteran's hearing loss was less likely as not aggravated beyond a natural progression by her military service and her in-service ear surgery. The VA examiner supported this point by noting that the Veteran's Speech Recognition Threshold (SRT) was 60 dB in her right ear in October 1977, before the ear surgery, and 60 dB in May 1978, after the surgery. Additionally, the VA examiner noted that the Veteran's right ear SRT was only 62.5 dB eight years after the surgery, in August 1986. In an August 2016 VA examination, the VA examiner noted that the Veteran's still experiences the Meniere's disease symptom of dizziness about twice a week. With respect to tinnitus, the Veteran reported that she experienced it more than once weekly with duration of episodes from 1 to 24 hours. The August 2016 VA examiner noted that, at enlistment, the Veteran showed mild to moderately severe loss in her right ear, with hearing in normal limits for her left ear. The August 2016 VA examination for audiology reflected the following findings: 500 HZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz Avg. Hz (1000Hz-4000Hz) Right 100 dB 105 dB 85 dB 95 dB 95 dB 95.00 dB Left 75 dB 75 dB 75 dB 80 dB 85 dB 78.75 dB With respect to the Maryland CNC word test, the Veteran scored 4 percent for the right ear, and 18 percent for the left ear. The August 2016 VA examiner diagnosed the Veteran as having Meniere's syndrome or endolymphatic hydrops, as well as having mixed hearing loss in the right and left ears. With respect to the right ear, while the VA examiner stated that the Veteran did experience a permanent positive threshold shift greater than normal for the right ear, the VA examiner opined that the Veteran's right ear hearing was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The VA examiner explained that the evidence showed that hearing loss existed prior to military service, with notes indicating endolymphatic hydrops existing prior to service. The VA examiner stated that the decrease in hearing in the right ear in the low to mid frequency range may be consistent with persistent hydrops. The VA examiner also stated that she did not find evidence of the Veteran's active duty service in itself caused an increase beyond the natural progression of the pre-existing right ear condition. As such, the VA examiner concluded that the pre-existing right ear hearing loss was not aggravated beyond the normal progression in the military services because there was no evidence of aggravation. With respect to right ear aggravation, the August 2016 VA examiner agreed with the June 2014 VA examiner's conclusion. The August 2016 examiner opined that the Veteran's Meniere's disease and hearing loss and tinnitus were not at least as likely as not permanently increased beyond their natural progression during the Veteran's active duty service. Like the June 2014 VA examiner, the August 2016 VA examiner noted that the Veteran's pre-surgery right ear hearing threshold was 60 dB in October 1977 and 60 dB post-surgery in May 1978. Additionally, the VA examiner noted that the Veteran's right ear hearing threshold was 62.5 dB in August 1986. However, with respect to the left ear, the August 2016 VA examiner stated that the Veteran experienced a permanent positive threshold shift greater than normal for the left ear during active duty. As such, the August 2016 VA examiner opined that the Veteran's hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The VA examiner attributed at least part of the Veteran's left ear hearing loss due to significant threshold shift at 4000 Hz from enlistment to separation, which may be evidence of a hearing injury. With respect to tinnitus, the August 2016 VA examiner noted that the Veteran's service records showed a 1977 onset of intermittent bilateral tinnitus. The August 2016 VA examiner opined that the tinnitus in the left ear resulted from noise exposure to weapons and aircraft in the military that was noted while the Veteran was in the military and there was evidence of a left ear hearing injury. With respect to Shedden element one of a present disability, the Board finds that the Veteran does have current Meniere's disease, to include hearing loss and tinnitus, as noted in the August 2016 VA examination since the VA examiner did an in-person examination, interviewed the Veteran, reviewed the claims file, and conducted a hearing test. The Board also notes that the Veteran is shown to have greater than 40 dB loss in the 1000, 2000, 3000, and 4000 Hz ranges in both ears, as well as a Maryland CNC word test score below 84 percent for both ears. 38 C.F.R. § 3.385. The Board now turns to whether the Veteran had Meniere's disease with hearing loss existed prior to service. While the Veteran's Meniere's disease was not noted at service entry, the February 1978 and May 1978 service treatment records indicated that the Veteran was diagnosed with Meniere's disease and hearing loss prior to entering active duty, with the 1978 entry being confirmed by correspondence with the Veteran's pre-service civilian medical provider. As such, the Board finds that there is clear and unmistakable evidence that the Veteran's Meniere's disease with hearing loss and tinnitus existed before service enrollment. The final matter is whether there is clear and unmistakable evidence that the Veteran's preexisting Meniere's disease was not aggravated during her period of active service. While the June 2014 VA opinion concluded that the Veteran's Meniere's disease was not aggravated by service, the Board accords this opinion less probative weight because it not conducted in-person and did not consist of a Veteran interview. Similarly, the February 2001 VA examiner also did not conduct an in-person examination or Veteran interview in concluding that the VA examiner could only speculate as to whether the Veteran's Meniere's disease symptoms worsened during service. Nevertheless, the Board finds it probative that the February 2001 VA examiner noted that the Veteran's symptoms were so significant in service in service that they required surgery. Finally, the Board finds the August 2016 VA opinion most probative finding that there was aggravation of the Veteran's hearing loss during service because the August 2016 VA examiner did an in-person examination, a Veteran interview, and recited the facts accurately in reasoning that the Veteran's hearing loss had worsened during service. Because the VA opinions are in conflict, the Board finds that the evidence is not clear and unmistakable that the Veteran's Meniere's disease was not aggravated during service. Also, with respect to the Board hearing testimony, the Board finds the Veteran and her ex-husband's testimony highly probative claiming that her ear disability was aggravated during service because their testimony is supported by the Veteran's entrance and discharge physicals, as well as the August 2016 VA medical opinion. In conclusion, there is clear and unmistakable evidence that the Veteran's Meniere's disease preexisted service, but not clear and unmistakable evidence establishing that it was not aggravated therein. Accordingly, the Veteran is entitled to service connection for Meniere's disease with hearing loss and tinnitus. ORDER Entitlement to service connection for Meniere's disease with hearing loss and tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs