Citation Nr: 21007103 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-15 648 DATE: February 8, 2021 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for Meniere’s disease is denied FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest in service. It is not attributable to service. 2. Meniere’s disease was not manifest in service. It is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Meniere’s disease was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a February 2016 videoconference hearing before a Veterans Law Judge sitting at the Louisville, Kentucky Regional Office. A hearing transcript is of record. The Board of Veterans’ Appeals (Board) subsequently informed the Veteran that the Veterans Law Judge (VLJ) who conducted the February 2016 hearing had retired and she therefore had the right to an additional hearing before a different Veterans Law Judge. In October 2019, the Veteran notified the Board that she did not want another hearing. The application to reopen the claim of service connection for a hearing loss disability was granted in a February 2020 Board decision, which also remanded the case for Agency of Original Jurisdiction (AOJ) adjudication. The case has been returned to the Board for further appellate action. When the Board reopened the claim in February 2020, it also took jurisdiction of the issue of Meniere’s disease, framing the issue as one of service connection for a hearing loss disability to include Meniere’s disease. For simplicity’s sake, the Board now separates the two issues. The Veteran implied that the February 2015 VA examination was inadequate. She asserts that the claims examiner does not understand hearing loss because the examiner said audiological screening at separation from service showed better thresholds than on the entrance examination. As will be discussed in the next section, the Board relied mainly upon the September 2019 VA otolaryngology opinion in its decision. This examiner rendered opinions with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran also points out that the Supplemental Statement of the Case (SSOC) was not signed. The Board finds that the failure of VA to sign the SSOC is not prejudicial. The AOJ readjudicated the case and provided an explanation of that readjudication to the Veteran. Therefore, the Veteran had the information necessary for her to advance her claim. The Veteran also expressed issues with VA’s conforming to the statements she believes were made by the VLJ who conducted the February 2016 Board hearing. Specifically, she asserts that the VLJ told her that her “compensation was at 30 percent conditioned on her attaining a statement from an audiologist,” which she asserts she provided within a week. She asserts that the benefit of the doubt doctrine is appropriate where one judge finds one way and another judge finds another way. The Board thoroughly reviewed the transcript of the February 2016 Board hearing. In it, the VLJ explained in detail to the Veteran the reasons why the private opinions at the time were lacking and what was needed for an acceptable opinion. Specifically, the VLJ explained that if the Veteran provided an opinion that firmed up the nexus element, she would have a good chance of getting the claim granted. Importantly, the VLJ explained that the new private opinion needed to provide a couple of sentences as to why the examiner thinks that way, adding “in other words, just not a blanket statement, but a little bit what they call a rationale.” As the Board discusses in the next section, the opinion that the Veteran provided after the Board hearing contained no rationale. Neither the Veteran nor her representative have raised any other 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 a duty to assist argument). 1. Service connection for a bilateral hearing loss disability to include Meniere's disease. The Veteran asserts that her in-service daily exposure to revving engines while working in an aircraft maintenance hangar. The Veteran asserts she had perfect hearing on entrance to service, but on separation, hearing loss is shown. The Veteran also asserts that after discharge, she had family members saying she was talking too loudly. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a hearing loss disability, and evidence shows that she was exposed to hazardous noise in service, the preponderance of the evidence weighs against finding that the Veteran’s hearing loss disability began during service or is otherwise related to the in-service noise exposure. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered 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. VA’s hearing loss regulation, 38 C.F.R. § 3.385, does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the February 1966 audiogram at entrance to service showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. After conversion to ISO units, the pure tone threshold results at separation from service were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 LEFT 15 10 10 10 5 The September 1968 audiogram at separation from service showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 5 10 LEFT -10 -10 -10 -5 5 These thresholds show hearing was within normal limits at entrance to and separation from service. From this evidence, the Board finds against hearing loss occurring during service. The Board, however, must evaluate whether hearing loss is related to service, even if it did not begin during service. In that regard, the Board finds that the preponderance of the evidence is against the claim. The Board concedes that the Veteran was exposed to hazardous noise during service. Nonetheless, several VA medical opinions held that the hearing loss was not related to service. The September 2012 VA examiner reasoned that the service audiological examinations show hearing within normal limits at 500 Hz to 6000 Hz. The February 2015 VA examiner reasoned that there were no significant threshold shifts in either ear, and that the exit screening showed better thresholds than her entrance examination. The examiner noted the Veteran’s change in recollection as to when hearing loss began, which the Board discusses below. The examiner further reasoned that the Veteran’s exposure to noise, off and on for two years in the military did not cause her current hearing loss, which was documented 47 years later. The examiner additionally reasoned that the diagnosis of Meniere’s disease was 31 years after the Veteran left the military, and that one of the signs of Meniere’s disease is hearing loss. In September 2019, the Board obtained a medical opinion from a Staff Otolaryngologist with VA’s Veteran’s Health Administration. The examiner opined that the Veteran’s right ear hearing loss was due to Meniere’s disease, which is consistent with the private medical opinion from Dr. Cohen. The examiner further opined that the cause of the left ear hearing loss is unclear, but points away from noise-induced hearing loss that occurred more than 30 years prior. The examiner reasoned that low frequency hearing loss is not consistent with noise-induced hearing loss. The examiner further reasoned that the pattern of the documented left-sided high frequency hearing loss can be seen in noise-induced hearing loss. However, it is also seen with other causes such as medications and presbycusis (age-related) hearing loss. The examiner also explained that the sudden drop in the left ear in 2010 is not characteristic of noise exposure that occurred over 30 years prior. The examiner also noted there was no noise notch at 4000 Hz, as seen with noise-induced hearing loss. The examiner explained that there are no studies the previous exposure to noise makes one more susceptible to hearing loss especially as documented 30 plus years later. Finally, the examiner cited the Veteran’s fluctuated word recognition scores and explained that fluctuation of the scores is not characteristic of noise-induced hearing loss. Although there are two private medical opinions of record, the Board finds they are much less persuasive than the VA medical opinions. A January 2013 private examiner, Dr. Cohen, opined that the Veteran’s right ear hearing loss was what would be seen in Meniere’s disease. The cause of the left ear, however, was “unexplainable.” The examiner concluded that her hearing loss “could be” a combination of Meniere’s disease and “possibly some noise exposure.” The opinion was accompanied by a detailed recitation of the Veteran’s audiological history. This opinion is weak because of its use of the “could be” and “possibly some” language. In March 2013, Dr. Cohen submitted a form opinion which had numerous of the answer choices completed. The totality of the responses is confusing and unclear. Although it asserts that it is at lease as likely that hearing loss is at least as likely as not caused by or a result of noise exposure, it also seems to indicate that 10 percent of the Veteran’s hearing loss is due to noise, it also indicates that Meniere’s disease is 80 percent of the cause, while diabetes is 10 percent of the cause. It also notes that Meniere’s disease is the most likely cause of the right ear hearing loss. There was no rationale accompanying this March 2013 opinion statement. Finally, a February 2016 medical opinion from a hearing clinic is of record. The opinion provided a one sentence conclusion only. It did not provide a rationale for the conclusion. Thus, it is of no probative value. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Board finds the most probative evidence, however, is the September 2019 VA otolaryngologist opinion. That opinion is thorough with detailed reasons that address in-depth the pertinent inquiries associated with the establishment of a nexus. It is supported by the record and is multi-faceted in that there are numerous reasons the examiner provides that point away from noise-induced hearing loss. Its rationale that medical literature does not support hearing loss that is delayed by more than 30 years (implying that a much lesser time interval may be another question) refutes the citations to medical literature and interpretations of the medical literature made by the Veteran’s representative. The Veteran’s representative is not competent to offer such interpretations as he has not been shown to have the requisite knowledge and skills to make such an interpretation. Finally, the otolaryngologist opinion is clearly written so as to leave the Board with no uncertainty as to its interpretation and how they measure up to the standards required by VA regulation for the establishment of a nexus. The opinions from Dr. Cohen, on the other hand, are unclear and weak. The Board acknowledges the statement from a fellow service-member that the servicemember was never provided a hearing examination during service. The Veteran has stated something similar. The Board finds this contention is not credible. The service treatment records show specific audiologic test results on both entrance and separation from service. There was not simply a box to be checked yes or no. The Veteran, on the other hand, is drawing on memory that is decades old. The Board also acknowledges the statement from the Veteran’s former employer from September 2002 to July 2010. The employer stated that the Veteran’s hearing got progressively worse. The Board finds this evidence is cumulative of the evidence establishing a current hearing loss disability. While the Veteran is competent to report having experienced symptoms of reduced ability to hear since service, the Board finds the Veteran’s statements are not credible. The Veteran has supplied conflicting accounts of when she noticed her hearing loss. In her August 2013 Notice of Disagreement, the Veteran reported that she noticed her hearing loss soon after discharge from service. This statement conflicts with her October 2011 application for service connection in which she reported her hearing loss began in “about 2007.” Moreover, it conflicts with the January 2013 report of medical treatment by Dr. Cohen, in which he stated that the Veteran had been treated in the emergency room in January 1999 and was diagnosed with right Meniere’s disease, with hearing loss shown in February 2000. The Veteran believes her hearing loss is related to the in-service noise exposure. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the medical and scientific causes of hearing loss, which are not readily observable by a lay person. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Veteran’s opinion on the topic is afforded no probative value. 2. Service connection for Meniere’s disease. The Board included the issue of service connection for Meniere’s disease in the scope of the claim in its February 2020 decision. The Board now evaluates the issue. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of Meniere’s disease, and the Veteran asserts that she had tinnitus in service, the preponderance of the evidence weighs against finding that the Veteran’s Meniere’s disease began during service or is otherwise related to an in-service injury, event, or disease. The Veteran does not assert that Meniere’s disease is related to service. In the Veteran’s lay statements, she discusses Meniere’s disease only in the sense that that it is not the only cause of her hearing loss and that in-service hazardous noise is another cause of her hearing loss. The January 2013 report of medical treatment by Dr. Cohen, in which he stated that the Veteran had been treated in the emergency room in January 1999 and was diagnosed with right Meniere’s disease, with hearing loss shown in February 2000. The diagnosis is more than 30 years since separation from service. The Veteran has not provided any indication that her Meniere’s disease is linked to her report of tinnitus in service, and she has not claimed that Meniere’s disease is related to service. Nonetheless, even if she had, the Veteran is in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of medical and scientific causes of disease, as well as complex diagnostic criteria for Meniere’s disease. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As there is no competent indication that Meniere’s disease is related to service, the duty to provide a VA examination is not triggered. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As there is no competent evidence of a link between service and the current Meniere’s disease, the claim must be denied. VA provided a medical opinion as to whether the Veteran’s Meniere’s disease is secondary to tinnitus. The Veteran has not made such a claim, and it is not reasonably raised by the record. The August 2020 medical opinion did not raise the claim. Accordingly, the Board will not discuss it here. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.