Citation Nr: 0708725 Decision Date: 03/23/07 Archive Date: 04/09/07 DOCKET NO. 05-39 005A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for otosclerosis with residual deafness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from May 1945 to November 1947. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The RO denied entitlement to service connection for deafness due to otosclerosis based on a finding that new and material evidence had not been submitted since service connection was severed in a final rating decision dated October 1957. In the January 1958 rating decision, service connection for deafness due to otosclerosis was severed based on a finding that the February 1948 rating decision granting service connection for aggravation of hearing loss beyond the natural progression of the disease, contained clear and unmistakable error. The RO determined that any such aggravation during service was due to the natural progression of the disease. The veteran did not appeal that determination and the January 1957 rating decision which severed service connection became final. In November 2004, the veteran submitted a claim of service connection for deafness due to otosclerosis. The RO treated the claim as a claim to reopen a previously denied claim of service connection, and determined that new and material evidence had not been received to reopen the claim. The veteran's current claim is that of service connection, not the propriety of the severance. Additionally, the Board finds that a significant change in law with regard to the presumption of aggravation has occurred since the last final denial of service connection in 1958. Thus, the Board finds that the veteran's claim is a new claim of service connection, and reopening of the severed claim is not necessary because the veteran is entitled to review of his claim of service connection on a de novo basis. Significantly, during the course of this appeal applicable regulations, as interpreted by governing case law, indicate that once a pre-existing disability is established, and in- service aggravation of that disability has been established, the burden then shifts to VA to show that any such aggravation was due to the natural progression of the disability. If VA is unable to show, by clear and unmistakable evidence, that any such aggravation was due to the natural progression of the disease, then service connection is warranted based on a presumption of aggravation. See Crowe v. Brown, 7 Vet. App. 238 (1995); see also Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Court has held that, generally, the misapplication of, or failure to apply, a statutory or regulatory burden-shifting presumption does not constitute "new and material evidence" for the purpose of reopening a claim under 38 U.S.C.A. § 5108. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998). The Board finds, however, that the changes in the application of the presumption of aggravation are significant, and a substantive change in the applicable law creating a new basis for entitlement to the claimed benefit. See Spencer v. Brown, 17 F.3d 368, 372 (Fed.Cir.1994). Such a claim is treated as a new claim and not a request for reconsideration of a previously disallowed claim. As the appellant has consistently asserted the merits of his claim during the course of this appeal, the Board finds he is not prejudiced by an appellate review of his service connection claim based upon the present record. See Bernard v. Brown, 4 Vet. App. 384 (1993). All VA duties to notify and assist required for a service connection claim have been satisfied. This appeal has been advanced on the Board's docket in accordance with 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2006). FINDINGS OF FACT 1. The veteran is not presumed to have been in sound condition at the time of entry into service because a pre- existing hearing loss was noted on his April 1945 military induction examination report. 2. There is clear and unmistakable evidence that the veteran's pre-existing deafness due to otosclerosis was aggravated during service; however, the medical evidence of record does not establish, by clear and unmistakable evidence, that the increase in severity of the pre-existing hearing loss due to otosclerosis was due to the natural progression of the disease. CONCLUSION OF LAW The veteran's pre-existing hearing loss due to otosclerosis is presumed aggravated during service; the criteria for a grant of service connection have been met. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 5103(a), 5013A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran asserts that service connection is warranted for deafness due to otosclerosis. The veteran maintains, despite a hearing loss noted on his induction examination, his progression to total deafness was not due to the natural progression of the disease. I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Pelegrini, the U.S. Court of Appeals for Veterans Claims held, in part, that a adequate notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In the present case, the RO sent a duty-to-assist letter to the veteran in February 2005, prior to the initial unfavorable rating of August 2005. Therefore, there was no defect with respect to the timing of the duty-to-assist letter. Moreover, as the benefit sought on appeal is granted, no further assistance in developing the facts pertinent to his claim of service connection for deafness due to otosclerosis is required. In addition to the foregoing harmless-error analysis, to whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim for service connection is granted, the RO will now have an opportunity to provide notice regarding effective date and initial rating before assigning such. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may 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) (2006). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2006). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2006). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board notes that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Regulations also provide that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1137, 1153 (West 2002); 38 C.F.R. § 3.306(a) (2006). The presumption of aggravation is not applicable unless the preservice disability underwent an increase in severity during service. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The determination of whether a preexisting disability was aggravated by service is a question of fact. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether such worsening constitutes an increase in disability or was the result of natural progression of the injury or disease. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition (as contrasted to the symptoms) has worsened. See Davis (John F.) v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002); Hunt, 1 Vet. App. at 296-97. The Court held that, in cases where a condition is properly found to have preexisted service, the Board, in considering the pertinent statutory and regulatory framework governing the presumption of aggravation, must determine: (1) Whether there was a worsening of the disorder during service; and (2) if so, whether there was clear and unmistakable evidence that the increase in severity was due to the natural progress of the disease. See Crowe v. Brown, 7 Vet. App. 238 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the issue for consideration essentially boils down to whether the veteran had a pre-existing hearing loss that increased during service beyond the natural progression of the disease. Factually, it appears that the at least some hearing loss was noted at the time of entry into service. According to the veteran's service medical records, prior to service, in 1938, he had bilateral otitis media requiring myingotomy twice on both ears. The veteran also reported that afterward, he had no difficulty with his hearing, although his cousin, who was reportedly an ENT specialist, told him that he had some hearing loss. The veteran served on active duty from May 1945 to November 1947. The April 1945 induction examination report indicated that the veteran had no ear, nose, or throat abnormalities. Importantly, however, the report also states, "Audiogram shows average loss of hearing, 30% each ear in all frequencies. ND." Hearing based on whispered voice test was 10/15 in the right ear and 12/15 in the left ear. Despite an April 1945 Certificate of Fitness indicating that the veteran was, "Physically fit, acceptable for general military service," the evidence is clear that the veteran may not be presumed sound at entry into service because a pre-existing hearing loss was explicitly noted on his April 1945 physical examination at induction. The Board now turns to the next part of the analysis, whether the veteran's pre-existing hearing loss was aggravated during service. During service, in June 1945, the veteran was treated for acute, suppurative otitis media, right ear, with hearing in the right ear of 3/15 and left ear hearing of 5/15. In June 1947, the veteran was admitted to a base hospital in Germany with a diagnosis of deafness, mixed type, bilateral with right ear loss of 37 percent and left ear loss of 38 percent. The hearing loss was mixed type, but predominantly conductive. The report indicates that the deafness existed prior to service. In August 1947, the veteran was transferred to Walter Reed General Hospital in Washington, DC. On admission, he had a diagnosis of moderate, bilateral otosclerosis, cause undetermined, "initially manifested in civil life." Hearing in the right ear was 0/20, 0/15, with 53 db loss; and hearing in the left ear was 0/20, 0/15, with 47 db loss. Again, it was noted that the veteran's condition existed prior to service. The veteran was fitted with a bone conduction hearing aid in the right ear and his speech reception was improved by 36 db. The veteran was subsequently medically discharged in November 1947 due to deafness. Thus, it appears that the veteran entered service with some hearing loss, and left service with complete, or near complete, deafness. As such, a definite increase in severity of the veteran's hearing loss was shown during service. As noted above, once it has been established that a pre- existing disability underwent an increase in severity during service, the burden then shifts to VA to show, by clear and unmistakable evidence, that the increase in severity was due to the natural progression of the disease. If that burden is not met, then service connection is warranted. In other words, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2006). In this case, the Board is unable to show, by clear and unmistakable evidence, that the veteran's progression from hearing loss to total deafness during service was due to the natural progression of the disease. There is no medical opinion which addresses the issue, and there was no indication at entry into service that the veteran's pre- existing hearing loss would naturally progress during service or otherwise. Although the medical evidence of record clearly demonstrates that the veteran had a hearing loss that pre-existed service, which progressed to deafness during service, the etiology of that hearing loss and/or otosclerosis was never determined. Additionally, the veteran was treated for otitis media during service and the possibility that the acute condition of otitis media during service may have contributed to the veteran's hearing loss may not be discounted. Moreover, a finding of a pre-existing hearing loss and in-service hearing loss, does not, on its face, establish that any increase in severity during service is due to the natural progression of hearing loss per se. As such, it is unclear why the RO determined that there was no aggravation beyond natural progression, when that question was never answered by a medical professional, particularly given the medical finding that the veteran's otosclerosis was of an undetermined etiology. In other words, there is no medical finding or opinion of record indicating that the veteran's progression to total deafness during service was a natural progression of his pre-existing hearing loss. After careful consideration of this claim, the Board finds that the evidence in this case does not show that the veteran's increase in severity of his pre-existing hearing loss due to otosclerosis during service was clearly and unmistakably due to the natural progression of the disease. Accordingly, the claim will be granted on the basis of a presumption of aggravation based on the application of benefit of the doubt in the veteran's favor. Further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of- the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). ORDER Service connection for deafness due to otosclerosis is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs