Citation Nr: 0814379	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  06-26 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

Alex Crisafulli, Associate Counsel


INTRODUCTION

The veteran had active military service from February 1985 to 
February 1988.  This matter comes before the Board of 
Veterans' Appeals (Board) on appeal from an August 2005 
rating decision of the Regional Office (RO) of the Department 
of Veterans Affairs in Muskogee, Oklahoma.  The veteran 
originally opted for a Board hearing but later withdrew this 
request.  38 C.F.R. § 20.704(e) (2007).  




FINDING OF FACT

The preponderance of evidence does not indicate that the 
veteran has a bilateral hearing loss that is etiologically 
related to his military service.  


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by 
the veteran's active duty service, and may not be presumed to 
have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 
1112, 1113, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 
3.303, 3.307, 3.309, 3.385 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA 
receives a complete or substantially complete application for 
benefits, it must notify the veteran of the information and 
evidence not of record that is necessary to substantiate a 
claim, which information and evidence VA will obtain, and 
which information and evidence the veteran is expected to 
provide.  38 U.S.C.A. § 5103(a) (West 2002).  VA must request 
that the veteran provide any evidence in the veteran's 
possession that pertains to a claim.  38 C.F.R. § 3.159 
(2007).  See also Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II).

After a careful review of the claims folder, the Board finds 
that letters dated in March 2005 and February 2007 satisfied 
the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The March 2005 letter advised the veteran 
what information and evidence was needed to substantiate the 
claim decided herein and what information and evidence must 
be submitted by him, namely, any additional evidence and 
argument concerning the claimed disabilities and enough 
information for the RO to request records from the sources 
identified by the veteran.  In this way, he was advised of 
the need to submit any evidence in his possession that 
pertains to the claim.  He was specifically told that it was 
his responsibility to support the claim with appropriate 
evidence.  Finally the March 2005 letter advised him what 
information and evidence would be obtained by VA, namely, 
records like medical records, employment records, and records 
from other Federal agencies.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United 
States Court of Appeals for Veterans Claims (Court) has held 
that compliance with 38 U.S.C.A. § 5103 required that VCAA 
notice be provided prior to an initial unfavorable agency of 
original jurisdiction decision.  Because VCAA notice in this 
case (March 2005 letter) was accomplished prior to the 
initial adjudication denying the claim, the timing of the 
notice does comply with the express requirements of the law 
as found by the Court in Pelegrini.  

On March 3, 2006 the Court issued a decision in Dingess v. 
Nicholson, 19 Vet. App. 473, 484 (2006), which held that the 
VCAA notice must include notice that a disability rating and 
an effective date for the award of benefits will be assigned 
if service connection is awarded.  A February 2007 letter was 
sent to the veteran providing such notice.  Although this 
letter was not provided prior to the initial adjudication of 
his claim, the Board has concluded that a preponderance of 
the evidence is against the veteran's claim of entitlement to 
service connection for hearing loss.  Any question as to the 
appropriate disability rating or effective date to be 
assigned to this claim is therefore rendered moot.  Id.  

The Board finds that VA also fulfilled its duty to assist the 
veteran in making reasonable efforts to identify and obtain 
relevant records in support of the veteran's claim.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007).  In 
this regard, the veteran's service medical records are 
associated with the claims folder.  The veteran has not 
identified any additional relevant, outstanding records that 
need to be obtained before deciding his claim.  

The Board acknowledges that the veteran has not had VA 
examinations specifically for his claim for bilateral hearing 
loss.  The case of McLendon v. Nicholson, 20 Vet. App. 79 
(2006), held that an examination is required when (1) there 
is evidence of a current disability, (2) evidence 
establishing an "in-service event, injury or disease," or a 
disease manifested in accordance with presumptive service 
connection regulations occurred which would support 
incurrence or aggravation, (3) an indication that the current 
disability may be related to the in-service event, and (4) 
insufficient evidence to decide the case.

Regarding the claim of bilateral hearing loss, an examination 
is not needed because the veteran's service medical records 
are absent for evidence of findings or complaints related to 
a decrease in bilateral hearing, and the evidence does not 
show that any bilateral hearing loss incurred within one year 
of service separation.  Accordingly, it is not necessary to 
obtain a medical examination or medical opinion in order to 
decide the claim for bilateral hearing loss.  38 C.F.R. § 
3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 
(2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans 
Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding 
that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and 
evidence of record "establishing that the veteran suffered 
an event, injury, or disease in service," is required to 
trigger VA's duties pursuant to § 5103A(d)); Wells v. 
Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that 
the Secretary's obligations under § 5103A to provide a 
veteran with a medical examination or to obtain a medical 
opinion is triggered if the evidence of record demonstrates 
"some casual connection between his disability and his 
military service"). 

Under the circumstances of this case, "the record has been 
fully developed," and "it is difficult to discern what 
additional guidance VA could have provided to the veteran 
regarding what further evidence he should submit to 
substantiate his claim."  Conway v. Principi, 353 F.3d 1369 
(Fed. Cir. 2004).  Therefore, the Board is satisfied that VA 
has complied with the duty to assist requirements of the VCAA 
and the implementing regulations and the record is ready for 
appellate review.




Analysis

The veteran asserts that he is entitled to service connection 
for bilateral hearing loss as such disability is the result 
of exposure to acoustic trauma during service.  See February 
2005 VA 21-526, p. 8.  Specifically, the veteran asserts he 
was working with heavy equipment, five-ton trucks, and boats 
during active service.  Id.  

While viewing the evidence in the light most favorable to the 
veteran in this case, the Board finds that a preponderance of 
the evidence is against the veteran's claim; as such, the 
appeal must be denied.  

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007).  Service 
connection may also be granted for certain chronic diseases, 
such as sensorineural hearing loss, when such disease is 
manifested to a compensable degree within one year of 
separation from service.  38 U.S.C.A. §§ 1112, 1113 1137 
(West 2002); 38 C.F.R. §§  3.307, 3.309 (2007).  In addition, 
service connection may be granted for any disease diagnosed 
after discharge, when all of the evidence, including that 
pertinent to service, establishes that a disease was incurred 
in service.  38 C.F.R. §§ 3.303, 3.304 (2007).  

A claim for service connection generally requires competent 
evidence of a current disability; proof as to incurrence or 
aggravation of a disease or injury in service, as provided by 
either lay or medical evidence, as the situation dictates; 
and competent evidence as to a nexus between the inservice 
injury or disease and the current disability.  Cohen v. 
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. 
App. 465 (1994).  

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).  To do so, the Board must assess the credibility 
and weight of all the evidence, including the medical 
evidence, to determine its probative value, accounting for 
evidence that it finds to be persuasive or unpersuasive, and 
providing reasons for rejecting any evidence favorable to the 
appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).

Service connection for impaired hearing is subject to 38 
C.F.R. § 3.385 (2007), which provides that impaired hearing 
will be considered to be a disability when the auditory 
threshold in any of the frequencies of 500, 1000, 2000, 3000, 
or 4000 Hertz is 40 decibels or greater; or when the auditory 
thresholds for at least three of the frequencies of 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.  Hensley v. Brown, 5 Vet. App. 155 
(1993).  The threshold for normal hearing in Hensley is from 
0 to 20 decibels; higher threshold levels indicate some 
degree of hearing loss.  Id.

The record indicates the veteran worked as a bridge crewman 
for nearly his entire duration of service.  See Certificate 
of Discharge from Duty.  As a result of this work, the 
veteran contends that his service records explicitly state 
that he suffered hearing loss while in service.  See 
September 2006 Statement of Veteran.  This assertion is not 
supported by the evidence in the record.  The veteran's 
service medical records show no sign of hearing loss while in 
active service.  An audiogram from his September 1984 
entrance examination (see below) demonstrates normal hearing 
within VA purposes under 38 C.F.R. § 3.385.  See September 
1984 Form 93:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
0
5
LEFT
10
5
5
0
0


There is nothing further in the record, be it lay or medical 
evidence, that suggests the veteran experienced or complained 
of hearing loss while in active service.  

In fact, a June 1985 reference audiogram (see below) 
demonstrates that the veteran had normal hearing for VA 
purposes.  See June 1985 DD Form 2215:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
0
LEFT
15
10
5
0
5

Further, a June 1986 audiogram (see below) demonstrates that 
the veteran had normal hearing for VA purposes.  See June 
1985 DD Form 2215:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
0
LEFT
15
10
5
0
5

A December 1986 annual examination (see below) also 
demonstrated that the veteran had normal hearing for VA 
purposes.  See December 1986 DD Form 2216:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
0
10
0
LEFT
15
15
10
5
10

A December 1987 airborne physical examination (see below) 
also demonstrated that the veteran had normal hearing for VA 
purposes.  See December 1987 Report of Medical Examination:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
0
0
5
LEFT
5
5
5
5
5

The veteran specifically denied hearing loss at the time of 
the December 1987 examination.  

A later December 1987 annual audiogram (see below) also 
demonstrated that the veteran had normal hearing for VA 
purposes.  See December 1987 DD Form 2216:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
0
5
0
LEFT
10
0
5
0
10

The veteran was discharged shortly thereafter in December 
1987.

Further, the pertinent evidence of record also does not show 
that the veteran had a hearing loss disability that 
manifested within one year upon his separation from service.  

The veteran can attest to factual matters of which he had 
first-hand knowledge, e.g., experiencing pain in service, 
reporting to sick call, being placed on limited duty, and 
undergoing physical therapy.  See Washington v. Nicholson, 19 
Vet. App. 362, 368 (2005). However, the veteran as a lay 
person has not been shown to be capable of making medical 
conclusions, thus, his statements regarding causation are not 
competent.  Espiritu v. Derwinski, 2 Vet. App. 492, 495 
(1992).  And while the veteran is competent to report what 
comes to him through his senses, he does not have medical 
expertise.  See Layno.  Therefore, he cannot provide a 
competent opinion regarding a diagnosis of hearing loss 
during service.  

The Board notes that the veteran's hearing was normal for VA 
purposes from his entrance examination almost to the time he 
was separated from service nearly three years later.  His 
June 1985 and December 1987 examinations indicate there was 
no incurrence of bilateral hearing loss during the veteran's 
time in service.  There is also no evidence that the veteran 
had any hearing loss that manifested within one year upon his 
exit from service.  The veteran's statement that his service 
records suggest he suffered hearing loss while in service is 
not supported by the evidence.  Furthermore, the veteran, as 
a lay person, is not competent to make any statements 
regarding causation of hearing loss.  See Espiritu.  
Therefore, the evidence in this case preponderates against 
the veteran's claim for service connection for bilateral 
hearing loss; as such, the appeal must be denied.  See 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
	
ORDER

Entitlement to service connection for bilateral hearing loss 
is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs