Citation Nr: 21007797 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-27 208 DATE: February 10, 2021 ORDER Entitlement to service connection for an ear disorder/disease, to include bilateral hearing loss, is denied. Entitlement to service connection for an acquired psychiatric disorder, also claimed as secondary to claimed hearing loss, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an ear disorder/disease, to include bilateral hearing loss, began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that an acquired psychiatric disorder, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an ear disorder/disease, to include bilateral hearing loss, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to July 1963. These matters come from an appeal of a February 2014 rating decision. The Veteran had a hearing before the undersigned Veterans Law Judge in April 2018. In June 2018, the Board remanded these matters for further development, to include obtaining VA medical records (which have been obtained), Social Security Administration (SSA) records (which have been determined to not exist in a February 2019 response from SSA), and medical opinions for the ear disorder and acquired psychiatric disorder claims (which were obtained and will be further discussed below). The Board notes that in April 2019 a different Veterans Law Judge (who had a February 2019 hearing with the Veteran) remanded multiple service connection issues, including for a low back disorder, the bilateral knees, and neuropathy of the bilateral upper and lower extremities. Those matters are still before the RO and are not before the Board. In July 2020 the Board denied service connection for gastroesophageal reflux disease (GERD) and remanded the above claims for new VA medical opinions, which were provided in August 2020. Service Connection 1. Entitlement to service connection for an ear disorder/disease, to include bilateral hearing loss. The Veteran contends, during his April 2018 Board hearing, that he has had hearing loss since being exposed to an explosive noise while guarding a cargo train in Korea. His spouse also reported that in May 1963, while in San Juan, one day the Veteran started screaming and was bleeding from his ear, after which he was treated by VA for a week and has had hearing loss since then. 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 although the Veteran has a current diagnosis of an ear disorder, to include bilateral hearing loss, the preponderance of the evidence weighs against finding that his current ear disorder and/or hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records are generally negative as to complaints of, or treatment for, a chronic ear disorder, to include bilateral hearing loss, though they did indicate occasional complaint. The May 1963 separation report of medical history indicated that the Veteran reported ear nose throat trouble, but not running ears. He clarified he had an earache. The separation examiner found that his ears were normal. The Board notes that audiometer findings did not meet the levels for a hearing disability for VA purposes under 38 C.F.R. § 3.385. Following his July 1963 separation from service, Dr. A.M-M., noted that he had treated the Veteran in August 1963 and February 1968. He noted that the Veteran had symptoms of chronic nasopharyngitis and bilateral otitis media. There had been deafness due to chronic otitis media. No other hearing loss was noted at that time. The Veteran underwent a VA examination in August 1969 and complained of hearing impairment since he left service that was progressively worsening. The examiner found normal hearing for speech frequencies and no pathology. The September VA ENT examination noted that the Veteran claimed progressive bilateral hearing loss since service, from when exposed to noise of from firing arms. The examiner found that it was an essentially negative ENT examination. The audiological test showed that hearing was essential normal for speech frequencies in both ears and that the Veteran should have no difficulty hearing speech. The Board notes that the audiological examination findings did not meet the level of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Subsequent VA medical records generally documented occasional complaints of, or treatment for, ear pain and hearing loss, which included findings of otitis. An October 1969 VA medical record noted treatment for ear pain and otitis media. A November 1969 record noted no bleeding or discharge and mild earache, though a different November 1969 record did note right ear bleeding. More recent VA medical records generally were negative as to complaints of, or treatment for, hearing loss. For example, multiple reviews of systems documented no complaints regarding the ears, including no complaints of hearing loss. (See VA medical records from July and October 2001; February, May and August 2002; May and August 2003; March 2004 and December; April and October 2005; and March 2008). There has since been treatment for hearing loss though. For example, a February 2009 VA medical record found mixed hearing loss. A March 2009 VA medical record noted that the Veteran would receive hearing aids. A November 2011 VA audiological assessment found mixed hearing loss of both ears. A June 2008 letter from Dr. E.M., an otolaryngologist, noted in-service exposure to weapon noise/gunshots. He found that the ENT exam was normal, but he has some hearing loss that was noted when one talks to him. The examiner found that the Veteran had “[h]earing loss probably secondary to aging and vascular problems in the cochlea.” A July 2008 private medical record of audiological findings showed that the Veteran had a moderate to severe sensorineural hearing loss for both ears. A January 2017 VA examiner found that the claimed ear condition/hearing loss was less likely than not incurred in or caused by claimed in-service injury, event, or illness. The VA examiner explained that the separation audiogram had been normal, and VA medical records did not show evidence of audiological treatment/care for hearing loss soon after service. Furthermore, the Veteran reported that his progressive hearing loss affected primarily his right ear for about 15 years. The Veteran also reported post-service occupational noise exposure and right ear infections. Medical evidence was silent as to treatment for care for hearing loss until June 2008 and hearing loss was first diagnosed in July 2008, 45 years after service. The examiner noted that prolonged high intensity noise exposure such as from service may cause damage to auditory structures resulting in hearing loss and could cause permanent damage in structures resulting in hearing loss. Hearing deficits, however, would appear either immediately after a noise trauma or gradually, during the noise exposure period. No retroactive effect is expected to be seen as hearing loss with onset so many years after being exposed to military noise. As such, hearing loss is most likely associated to combined effect of etiologies which predispose to gradually develop progressive hearing loss over time, including post-service occupational or recreational noise exposure and presbycusis, or the normal aging process, among others. Such etiologies were associated to progressive dysfunction of inner ear structures. Based on the above, the examiner concluded that the Veteran’s bilateral hearing loss is not likely due to or caused by event during service. A January 2017 VA examiner for ear conditions also diagnosed the Veteran with chronic nonsuppurative otitis media (serous otitis media). The examiner noted in-service treatment for ear conditions. The examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that the Veteran had no persistence of otitis media infections since 1969. Furthermore, ENT consultations for ear complaints in 2003 and 2009 were negative for otitis media by history and examination. Audiogram on release from service in 1963 was normal and hearing aids were recommended in 2009. Recurrent episodes of otitis media occurred in in service until 1969. There was no evidence to support hearing loss from chronic ear disease in face of the negative ENT examinations. Therefore, the ear condition and hearing loss was less likely than not related to treatment/condition that originated in service. In April 2017, the VA examiner provided an addendum opinion explaining that there was a 48-year history with no otitis media since 1968. In chronic ear disease, recurrent infections are the norm and occur yearly or in a recurrent pattern, which the Veteran did not present. In chronic ear examinations, the following findings are expected of retracted ear drums, a tympanic membrane perforation, and active drainage. The Veteran had intact membrane and audiogram was confirmatory, as well as, 2 ENT examinations. The examiner found a clear absence of chronic ear disease which would support separate episodes. As such, the otitis media of 1962 to 1968 was unrelated to the episode in 2017. There was no evidence to support the association. Therefore, otitis media is less likely than not due to in service otitis media and unrelated to in-service treatment for otitis media. In March 2019, the Veteran received a new VA medical opinion. That VA medical opinion provider found that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The provider noted that the Veteran served from August 1961 to July 1963 and that the hearing tests (pre-induction and separation exam) showed normal hearing in both ears for the period of active duty, with the separation exam showing normal hearing in all the frequency range and no evidence of high frequencies hearing loss. There was no evidence of complaints of hearing loss for more than 40 years after service. Medical literature indicated that exposures to high intensity noise levels, like industrial/construction noise, printing work, music, or military noise, can cause permanent or progressive hearing loss during prolonged periods of exposure. No retroactive hearing effects were expected after years of being exposed to high intensity noise. It was highly probable that VA evaluations showed a bilateral hearing loss that was due to presbycusis or hearing loss expected as a normal aging process a combination of both factors (aging process and noise exposure). It is reasonable to conclude that the bilateral hearing loss is less likely as not related to the military service. In August 2020, another VA medical opinion, from an audiologist, was obtained. The provider noted in-service treatments for otitis externa and otitis media. She explained that in the medical field, a chronic problem usually means persistent for 3 months or occurring within 6 contiguous office visits. There was no supportive evidence in the medical records that indicate a “chronic” condition. In 1969, the Veteran sought care again for otitis externa. The examiner explained that this is a skin irritation in the ear canal and is not usually associated with hearing loss and is treatable with medicated drops. In addition, the in-service hearing exams showed normal hearing levels in both ears. Review of the medical records from 1961 to 1969 did not indicate chronic middle ear pathology or otitis media or hearing loss. The Veteran’s claimed condition was less likely than not caused by military service. An August 2020 VA medical opinion from a physician was also obtained. The VA medical opinion provider explained that there was no evidence in the pertinent evidence provided that the Veteran’s ear disease was related to or incurred as a result of his military service. Military service was from 1961 to 1963, and a hearing test in September 1969 was within normal limits per the records. Furthermore, per the records, hearing loss was diagnosed in July 2008, many years after the military service. The examiner noted that hearing deficits appear, either immediately after a noise trauma, or gradually, during the noise exposure period. No retroactive effect is expected to be seen, as hearing loss with onset so many years after being exposed to military noise. The provider noted an institute of medicine study that “there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. Considering the above, the VA medical opinion provider opined that the Veteran’s ear disorder/hearing loss condition was not caused by or a result of an ear disorder or hearing loss during service and is not related to military service. Moreover, the provider explained that it was most probable that the Veteran’s bilateral hearing loss was related to combined etiologies which may predispose the Veteran to gradually develop hearing loss over time (for example – genetic factors/familial hearing loss, post-service occupational and or recreational noise exposure, medication side effects, and presbycusis, among others). All of these are associated to progressive inner ear hair cell dysfunction. The following was noted in records as part of the appeals hearing: The ear disorder/disease was less likely than not incurred in or caused by the ear disorder/disease, to include bilateral hearing loss during service and was less likely than not related to service. The Board’s most recently remanded this claim to allow for a VA medical opinion provider to review newly associated medical evidence, which was available to the August 2020 VA medical opinion providers. The prior remand orders of obtaining unassociated VA medical records and determining the existence of Social Security Administration (SSA) records has also been accomplished. Although the VA medical opinions from prior to August 2020 are of limited probative value as they did not have the opportunity to review all the evidence of record, the Board finds that all the VA medical opinions from January 2017 to the present have been consistent in not finding that the Veteran had hearing loss and/or an ear disorder/disease due to service. The August 2020 VA medical opinion providers’ findings are the most probative evidence of record, as they based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Both August 2020 VA medical opinion providers specifically found no ear disorder/disease or bilateral hearing loss due to service. Although the Veteran is competent to report having experienced symptoms of bilateral hearing loss or ear symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic ear disease. The issue is medically complex, as it requires knowledge of medical determinations as to chronicity and continuity for a determination of otitis as explained by the VA examiners. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board does not find that the Veteran is credible as to his reports of hearing loss since service. Such reports are not consistent with the separation examination findings or his report of medical history at that time. Furthermore, the private medical record from Dr. A.M-M. indicated treatment from August 1963 a month after the Veteran’s separation from service. Dr. A.M-M. reported that the Veteran had deafness at that time, but only due to otitis media. Subsequent reports as to deafness in the subsequent years were also tied to bouts of otitis media. Actual bilateral hearing loss was not diagnosed by a medical professional until June 2008. Furthermore, the Board notes that the Veteran has not been consistent in his reports of how his hearing loss started, alternatively claimed it began after a specific event of a train explosion during the Board hearing, but previously only reporting arms fire as his noise exposure decades earlier during his September 1969 VA examination. Given such evidence, the Board finds that the Veteran’s claims as to chronicity of hearing loss are not credible. To the extent that the Veteran’s spouse, during the Board hearing, has indicated that the Veteran has had hearing loss months after service, when his ear started bleeding and after which he received treatment from VA, the Board notes that such a report is only indicative as to hearing loss that developed after service. The medical evidence associated with VA treatment has been considered by the VA medical opinion providers. Moreover, even the private medical opinion from June 2008, by Dr. E.M. found that the Veteran’s hearing loss was probably secondary to aging and vascular problems in the cochlea, not noise exposure. Other than the non-medical professional contentions provided by the Veteran, there is no probative medical evidence of record supportive of the Veteran’s claims. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The claim for service connection for an ear disorder/disease, to include bilateral hearing loss, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include claimed as due to bilateral hearing loss. The Veteran asserts that in 1969, when he initially filed a claim, he received a diagnosis of anxiety reaction from VA examination and his separation examination showed a nervous condition, though the Veteran did not report having a nervous condition at his separation examination. It was not until the last January 2017 where the doctor stated that his anxiety reaction combined with the depressive disorder was not known revealed with the military service due to too many years having passed since he requested medical attention. The Veteran appears to claim that he has an acquired psychiatric disorder that began during service. 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 notes that the Veteran has also claimed service connection for an acquired psychiatric disorder as secondary to his claimed bilateral hearing loss. As service connection for bilateral hearing loss was denied above, service connection as secondary to bilateral hearing loss is not possible. Although the Veteran has a current diagnosis of an acquired psychiatric disorder, to include major neurocognitive disorder and alcohol use disorder (per the March 2019 VA examination), the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of an acquired psychiatric disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran also did not report any psychiatric symptoms at that time. The Board would like to make clear that as opposed to the claimed report of a nervous condition noted at the separation examination as claimed by the Veteran’s representative during the Board hearing, the May 1963 separation examination did not find any psychiatric abnormalities. The representative did correctly report that the Veteran did not report any psychiatric symptoms on his separation report of medical history. The Board also notes that service treatment records are negative for any complaints of, or treatment for, psychiatric symptoms. Following his July 1963 separation from service, the record is silent as to any complaints of, or treatment for, a psychiatric disorder until the Veteran’s August 1969 application for a nervous condition. In August 1969, the Veteran underwent a VA examination. He reported that he felt nervous, bad. The examiner diagnosed a mild anxiety reaction and referred him for psychiatric evaluation. An October 1969 VA psychiatric evaluation noted that the Veteran reported that since his discharge in 1963 he had insomnia and woke up frightened. He also could not stand loud noises and had a poor concentration span. He received a diagnosis of mild anxiety reaction. The record is subsequently silent for years following that VA examination. A November 1969 VA medical record documented that the Veteran had a good general condition and mental status; he was found to have negative neuropsychiatric systems. Decades later the medical evidence of record generally documented treatment for alcohol related disorders but did not provide any etiology opinions. For example, a January 1999 letter documented that the Veteran had been treated for alcohol induced mood disorder with depressive features. The Veteran has also been treated at the Forensic Psychiatric Hospital, as indicated in a March 1999 letter. An August 1999 Administration of Mental Health Services and Against Addiction Center of San Patricio record documented that the Veteran was receiving treatment at VA. A January 2001 letter noted that he was diagnosed with neuro psychotic condition and organic brain syndrome. A September 2003 Department of Family record documented that the Veteran had a diagnosis of dependency on alcohol with depression. Later VA medical records continue to indicate occasional addiction treatment and psychiatric treatment, without findings as to etiology. A February 2010 VA psychiatry admission evaluation noted that the Veteran’s problem list indicated organic brain syndrome and alcoholic psychosis. The provider noted a history of alcohol dependence, depression (vs alcohol induced depressive/psychotic disorder), memory problems, and past psychiatric hospitalization in 1998 after self-harm gesture/attempt. He was later treated for substance abuse until he stopped in August 2009. He received a diagnosis of alcohol dependence and rule out substance induced mood disorder, nicotine dependence, and cognitive disorder not otherwise specified. In March 2010, he received a VA psychiatric consult diagnosis of alcohol dependence, alcohol induced dementia, substance-induced mood disorder, and nicotine dependence. A January 2013 VA psychiatric evaluation noted that the Veteran had previously refused to continue participation in a substance abuse clinic and had working diagnoses of alcohol dependence, alcohol induced dementia, alcohol induced mood disorder. The provider found a cognitive disorder, not otherwise specified, and depressive disorder not otherwise specified. More recent VA medical records include a November 2019 finding of stable depression by his primary care provider. A May 2020 indicate that the Veteran had been treated for substance abuse but had been discharged from the program for failing to comply with program requirements. Although the Veteran is competent to report having experienced psychiatric symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations that reached the level of a disability for a medical diagnosis. Jandreau, supra. Moreover, the Board does not find the Veteran’s recent reports of psychiatric symptoms starting in service to be credible. As previously noted, the service treatment records, to include the separation examination are negative as to any complaints of, or treatment for, psychiatric symptoms. Although there are multiple VA medical records documenting complaints regarding his ears in his years following service, the record is silent as to any psychiatric complaints until his 1969 claim – over 5 years following his discharge from service. A month after his September 1969 VA examination, a VA medical provider found him psychiatrically normal. The record was subsequently silent as to complaints of, or treatment for, psychiatric disorder until over a decade later, in conjunction with his alcohol abuse. In March 2019, a VA examiner provided the only etiology opinion of record. She found that the Veteran’s major neurocognitive disorder and alcohol use disorder were not due to, secondary to, incurred, or associated in any way with military service or a medical condition. They were two different and distinct conditions, not related to each other. She noted that the Veteran had been abusing alcohol since his youth and that alcohol was a very potent psychoactive substance capable or aggravated and modified any other mental disorder. These conditions were genetically predisposed, the major neurocognitive disorder, also known as dementia, was not due, related, incurred, or associated in any way to military service. Rather, it was a neuropsychiatric disorder, associated to the deposition of amyloid in the brain and a genetically bound condition, not associated to service. A relation between the neuropsychiatric disorder and the Veteran’s service was not established. There was no relation between the service and genetically predisposed condition. Alcohol use disorder was a product of the Veteran’s own and willful misconduct. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the medical evidence of record over the lay assertions of the Veteran. The Board further notes that a finding regarding depressive disorder was not found until decades after service and there is no probative medical evidence of record attributing it to service. At most medical records indicate it is part of his alcohol abuse, such as the February 2013 VA medical provider noting he had alcohol induced mood disorder. There has also been no current Axis I diagnosis of an anxiety disorder during the appeal period. To the extent that the Veteran may claim that his use of alcohol in service led to the currently diagnosed disorders, the Board notes that alcohol abuse, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(d). The Board thus finds that the most probative evidence of record shows that the Veteran did not develop an acquired psychiatric disorder in service or for years after service and that his current acquired psychiatric disorder is not etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. (Continued on the next page)   Entitlement to service connection for an acquired psychiatric disorder is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.