Citation Nr: 19109224 Decision Date: 02/07/19 Archive Date: 02/06/19 DOCKET NO. 11-04 658 DATE: February 7, 2019 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died at age 80 in December 2008. 2. The Veteran’s in-service MOS exposed him to acoustic trauma while in service. 3. The Veteran’s sensorineural hearing loss is of service origin. 4. The immediate cause of death listed on the death certificate was aspiration pneumonia due to or as a consequence of Alzheimer’s Dementia. 5. The Veteran’s hearing loss contributed substantially or materially to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1945 to December 1947. He died in December 2008. The appellant is seeking benefits as his surviving spouse. The appellant appeared at a videoconference hearing before the undersigned Veterans Law Judge in April 2012. A transcript of the hearing is of record. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a presumptive basis for certain chronic diseases, such as sensorineural hearing loss, if manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a) (2017). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2017). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4) (2017). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran died in December 2008. The immediate cause of the Veteran's death was listed as aspiration pneumonia, which was due to or as a consequence of Alzheimer’s dementia. At the time of the Veteran’s death, service connection was not in effect for any disorders. The appellant maintains that the cause of the Veteran's death was as a result of the duties performed while in service. She has set forth two theories as to how his death is related to his period of active service. The appellant maintains that the duties the Veteran performed in service resulted in hearing loss, which in turn, substantially contributed to his Alzheimer’s dementia resulting in aspiration pneumonia that was his immediate cause of death. In the alternative, the appellant maintains that the Veteran’s was exposed to asbestos in service during the performance of his duties and that the asbestos exposure caused the Alzheimer’s dementia which resulted in aspiration pneumonia that was the immediate cause of death. As to the latter claim of the cause of death being related to asbestos exposure, as the Board is granting the claim of service connection for the cause of the Veteran’s death on the basis of his hearing loss, which is the full grant of the benefit sought on appeal, the Board will not address the appellant’s contentions as it relates to asbestos exposure contributing to the cause of the Veteran’s death. In conjunction with the appellant’s claim, a VA medical opinion was obtained in August 2014. Following a review of the file, the examiner indicated that it was as least as likely as not that loss of hearing and Alzheimer’s Disease (AD) were associated and independent variables of aging; however, there was no medical based, scientific evidence to support a relationship of loss of hearing causing AD. Thus, it was less likely than not that the Veteran’s claimed hearing loss caused AD and thereby led to the Veteran’s death by aspiration pneumonia. She stated although the Veteran was exposed to noise while serving time in the ship’s boiler room, it would be mere speculation to assume that his loss of hearing was caused by his time in service because of the 58 year gap between medical evidence and time of separation. She reported that her comprehensive medical review of the clinical files, CAPRI, and current medical literature stood as the foundation for the medical opinion. In support of her claim, the appellant submitted a December 2015 letter from the Veteran’s private physician, G. S., M.D. Dr. S indicated that the Veteran was first seen in his office for his hearing loss in June1992. At that time, he stated that he had been suffering from hearing loss for several years. Dr. S. reported that it was his understanding that the Veteran served on a ship in WWII from 1945 to 1947, where he worked in the boiler room. He indicated that as a result he was subjected to constant vibrations and loud noises for extended periods of time each day. He stated that in his opinion, the constant vibrations and loud noises most probably contributed to his hearing loss. In a March 2016 letter, G. K., M.D., indicated that the evidence demonstrated that the Veteran served on a naval warship in the 1940’s. It was not disputed that he was exposed to very high sound intensity. He believed that this caused his bilateral sensorineural hearing loss. He indicated that an association between sensorineural hearing loss and Alzheimer’s disease was established. He stated that while the link could not be claimed causal, his clinical impression based upon a review of the record lent him to consider that the Veteran’s hearing loss was associated with the onset of Alzheimer’s disease. The disease was progressive, culminating in complications which led to his death. An additional VA medical opinion was obtained in May 2017. Following a review of the file, the examiner indicated that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or related to service. The examiner noted that the Veteran had normal whisper voice testing at enlistment and separation. No complaints of hearing loss or tinnitus were noted in service. The first evidence of complaints of hearing loss was in 1992. In a June 1992 treatment note, it was indicated that the Veteran had been having hearing trouble for several years. At the time of a July 1992 visit, the Veteran reported having hearing trouble for 11 years following exposure to a loud ring of a portable telephone. He noted ringing in the left ear several days after the event as well as hearing loss. An audiogram performed at that time revealed bilateral sensorineural hearing loss. The examiner noted the opinion from Dr. S. and stated that he did not cite any supporting evidence from the Veteran’s medical records and did not give a rationale for his opinion. Moreover, he was not a specialist in hearing loss and he did not provide any credible medical references to support his opinion. The examiner also made reference to a medical article noting that hearing loss following acoustic trauma occurred immediately following the incident. She indicated that there was insufficient scientific evidence to conclude that permanent hearing loss directly attributable to noise exposure developed long after noise exposure. She noted that as reported in the 1992 private treatment record, the Veteran associated the onset of hearing loss with a specific acoustic trauma that occurred 11 years before his audio evaluation. This would correspond to onset round 1981, around 35 years after separation. She opined that based upon the objective evidence from the 1992 records and the credible medical references noted above, it was less than 50 percent likely that the Veteran’s bilateral hearing loss was caused by or due to excessive noise exposure in the military or by any other event that occurred during military. In support of his claim, the Veteran submitted a November 2018 independent medical opinion from M. Sh., M.D. Dr. Sh. indicated that he had reviewed the entire record. He observed that noise-induced hearing loss (NIHL) was caused when the microscopic hair cells within the inner ear were destroyed. These cells detected sound and sent the sound to the hearing nerve and brain where the sound was processed. The ear contained a finite amount of hair cells and once the cell hairs were damaged, they did not grow back. NIHL could be caused by a one-time exposure or by continuous exposure to loud sounds over an extended period of time. One-time exposure, such as an explosion, could rupture the eardrum or damage the bones in the middle ear causing acoustic trauma with immediate and permanent hearing loss whereas continuous exposure damaged the hair cells over time. In the latter case, NIHL could be immediate or could gradually occur over time before it was noticeable. Often many people ignored the signs of hearing loss until they became pronounced. Symptoms could include difficulty understanding speech and muffled or distorted hearing, which was even more noticeable in noisy environments. He noted that there had been numerous studies relating hearing loss and cognitive decline. A study by Dr. Frank Lin and colleagues, "Hearing Loss and Dementia-who’s listening," focused on the causal relationship between hearing loss and the development of dementia. The study concluded that longitudinal studies of community-dwelling older adults had demonstrated that hearing impairment was independently associated with a 30-40% rate of accelerated cognitive decline and with a substantially increased risk of incident all-cause dementia. The study compared individuals with normal hearing to individuals with mild, moderate and severe hearing impairment. The study found that individuals with mild, moderate and severe hearing impairment had a 2-, 3- and 5- fold increased risk of incident all-cause dementia, respectively. The physiology behind this connection involved the damage to the hair nerves and other cochlear structures. As the cochlea is further damaged by extended noise exposure the result is poorer encoding of sound. Thus, greater cognitive resources are required for auditory processing because the brain has to work harder to process the sound. This overcompensation for auditory processing takes away resources and comes as a detriment for other important cognitive processes such as working memory. The person is using a great amount of mental energy to perceive the speech which leaves fewer mental resources for processes like memory. Additionally, as hearing loss increases, the ears are limited in the number and frequency of sounds they pick up, in turn, the hearing cells and nerves are catching and sending fewer signals to the brain resulting in less active brain function. He observed that there were numerous studies of neuroimaging which showed that individuals with hearing impairment had accelerated rates of whole brain atrophy. Wingfield and Peelle concluded that certain structures of brain cells shrunk when they did not receive enough stimulation, finding older adults with hearing loss having less gray matter in the part of the brain that received and processed sound from the ears. An additional factor Wingfield and Peelle noted was the relationship between hearing loss and social isolation as a risk factor for cognitive decline and dementia. Having difficulty hearing tended to isolate people from others and social isolation was a known risk factor for dementia. Dr. Sh. stated that in the present case, the Veteran served as a fireman second class in the boiler room of the U.S.S. Gunason. It was known that working in the boiler room of a ship exposed the Veteran to constant vibrations and extreme levels of noise to the extent that it was considered an occupational hazard. He noted that K. R. worked in the boiler room with the Veteran and recalled constant vibrations and extreme noise from the various pumps, engines, propellers, and shafts. As the exposure was continuous and not a one-time exposure, it was likely that the hearing loss developed over time. It was known that hearing loss could be immediate or could gradually occur due to this type of damage. In this case, it was clear that the damage was to the hair cells and cochlea which did not immediately result in hearing loss, but gradually became more and more apparent over time. He noted that the VA examiners stated that it would be "mere speculation" to assume the Veteran’s hearing loss was caused by service because of the fifty eight year gap between the medical evidence and time of separation. However, it was common for patients to not seek treatment for hearing loss until it was very pronounced. He noted that the Veteran’s son provided evidence that the Veteran displayed symptoms of hearing loss prior to seeking treatment. The Veteran’s son recalled, "ever since I can remember, my father had problems with his hearing." He also recalled the Veteran having the television or radio always turned up very loud, asking him to speak up, and the Veteran accusing others of not speaking loudly enough or mumbling, common symptoms of hearing loss. Dr. Sh. stated that when the Veteran finally sought treatment in the early 1990’s, he mentioned exposure to a loud ring eleven years prior, where he had ringing in his ears and noticed a hearing loss. Dr. Sh. noted that this exposure more than likely added to the already present damage and was more noticeable because it was a one-time exposure present in his memory. As early as 1991, the Veteran was recommended hearing aids, however, insurance would not pay for them. He noted that there was additional literature which showed that treatment of hearing loss could deter cognitive deficits. As the Veteran’s hearing continued to decline, more cognitive resources were used to decipher hearing which pulled resources from other processes like memory. The Veteran likely became more isolated due to his hearing loss which was also a predictor of cognitive deficits. He observed that by 2005, audiograms revealed severe hearing loss, and by 2006, confusion in the Veteran was noted by providers. By 2008, the Veteran had passed away with the cause of death as aspirational pneumonia and dementia-Alzheimer’s disease. He observed that multiple doctors in the record had provided their opinions that the Veteran’s exposure to extreme noise levels and constant vibrations contributed to his bilateral sensorineural hearing loss. He indicated that the VA employee physician, stated that there was no medically based scientific evidence to support a relationship of hearing loss causing Alzheimer’s disease. The medical literature cited above presented differently. Numerous studies had cited the causative relationship between hearing loss leading to cognitive deficits and dementia-Alzheimer’s disease. The most recent VA examiner, a PA-C, declined Dr. S’s opinion that the Veteran’s hearing loss was caused in service and led to the development of his Alzheimer’s disease. She concluded that Dr. S. was not a specialist in hearing and did not provide a rationale for his opinion. She discarded the opinion of Dr. S., a physician who was more than likely exposed to hearing issues on a daily basis as a primary care provider and was the treating physician for the Veteran for many years. Dr. S. knew, on a first-hand account, the Veteran’s history and medical issues. Additionally, the VA PA-C failed to mention the other opinions supporting the findings that the Veteran’s hearing loss contributed to his dementia-Alzheimer’s disease. Dr. Sh. indicated that it was his opinion that it was at least as likely as not that the Veteran’s hearing loss was caused in service. He based this opinion on the following facts. It was conceded that the Veteran’s MOS exposed him to extreme noise and vibrations. It was his opinion that this continuous exposure caused irreversible acoustic trauma. It was at least as likely as not that the constant vibrations and continuous exposure to loud noises caused irreversible damage to the Veteran’s hearing which gradually became more apparent over time. The Veteran more likely than not ignored the signs of hearing loss until they became pronounced in the 1990’s, as evidenced by the Veteran’s son’s statement of earlier symptoms. He reported that he had considered other causes of hearing loss including natural loss due to age, but found the Veteran’s exposure in service was the probable cause of this hearing loss. Dr. Sh. further indicated that it was his opinion that it was at least as likely as not that the Veteran’s hearing loss substantially and materially contributed to his development of dementia-Alzheimer’s disease and ultimately his demise. He based this opinion on the medical literature cited above which associated the consequences of hearing loss as a risk factor for dementia. Hearing loss was an independent and direct risk factor for cognitive deficits and the development of dementia. The medical literature supported the causal relationship between the Veteran’s hearing loss and development of dementia-Alzheimer’s disease. It was his opinion that the hearing loss, which was caused by his service in the Navy, substantially aggravated his mental condition and was a substantial cause of his death. He indicated that he was in agreement with the other private physicians that the Veteran’s hearing loss was caused in service and substantially and materially contributed to the development of dementia-Alzheimer’s disease and ultimately his demise. As evidenced above, there is conflicting evidence as to the cause of the Veteran's Alzheimer’s dementia which led to his immediate cause of death, aspiration pneumonia. Service treatment records do not reveal any complaints or findings of hearing loss during the Veteran's period of active service or within the one year following his separation from service. However, the Veteran MOS in service exposed him to continuous noise in the boiler room. He has submitted statements in support of the claim that the inservice noise exposure was continuous in nature. Furthermore, inservice noise exposure has been conceded. The appellant has also submitted statements from family members demonstrating that the Veteran had hearing difficulties for many decades. The opinions of record are at least in equipoise as to whether the Veteran’s sensorineural hearing loss was caused by his period of active service. The negative opinions set forth by the VA examiners are offset by the private physicians opinions, with the November 2018 opinion from Dr. Sh. providing detailed information as to the inservice noise exposure, noting statements from family members reporting continuous hearing problems throughout the years, medical articles demonstrating a relationship between the type of noise exposure experienced by the Veteran and the development of hearing loss following such noise exposure, and also addressing the prior opinions rendered by the previous VA examiners, when rendering his opinion that the Veteran’s hearing loss is related to his period of service. In this case, the Board finds that the opinions are at least in equipoise as to whether the Veteran's hearing loss arises from inservice noise exposure. In such a case, reasonable doubt must be resolved in favor of the claimant. As the Board has found that the Veteran’s hearing loss is related to his period of service, the question then becomes what impact, if any, the Veteran’s hearing loss had on his Alzheimer’s dementia, with is the principal cause of his death. In this regard, the appellant has submitted statements from several physicians demonstrating a relationship between the Veteran’s hearing loss and his Alzheimer’s dementia. Dr. K., indicated that an association between sensorineural hearing loss and Alzheimer’s disease was established. He stated that while the link could not be claimed causal, his clinical impression, based upon a review of the record, lent him to consider that the hearing loss was associated with the onset of Alzheimer’s disease. The disease was progressive, culminating in complications which led to his death. Dr. Sh. provided more specific detail as to the relationship and indicated that it was his opinion that it was at least as likely as not that the Veteran’s hearing loss substantially and materially contributed to the development of dementia-Alzheimer’s disease, and ultimately his demise. He based his opinion on medical literature which associated the consequences of hearing loss, indicating audiological impairments as a risk factor for dementia, and noted that hearing loss was an independent and direct risk factor for cognitive deficits and the development of dementia. He observed that the medical literature supported the causal relationship between the Veteran’s hearing loss and development of dementia-Alzheimer’s disease. He opined that the hearing loss, which was caused by his service in the Navy, substantially aggravated his mental condition and was a substantial cause of his death. He stated that the Veteran’s hearing loss was caused in service and substantially and materially contributed to the development of dementia-Alzheimer’s disease and ultimately his demise. Given the foregoing, and resolving reasonable doubt in favor of the appellant, the Board finds that the Veteran’s hearing loss contributed substantially or materially to cause death, or aided or lent assistance to the production of death. As such, service connection is warranted for the cause of the Veteran’s death. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. S. Kelly, Counsel