Citation Nr: 0707662	
Decision Date: 03/14/07    Archive Date: 03/20/07

DOCKET NO.  06-11 061A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


WITNESSES AT HEARING ON APPEAL

Appellant, spouse, and granddaughter


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The veteran had active military service from October 1942 to 
November 1945.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a May 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania.

In February 2007, the veteran presented testimony at a 
hearing conducted by the undersigned Veterans Law Judge (VLJ) 
sitting at the Board in Washington, DC.  The Board granted a 
motion to advance this case on the docket due to the 
veteran's advanced age. 38 C.F.R. § 20.900(c) (2006).
 

FINDING OF FACT

The preponderance of the competent evidence of record is 
against finding that the veteran has a bilateral hearing loss 
which is related to service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred or aggravated in 
active service, and a sensorineural hearing loss may not be 
presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 
5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 
3.159, 3.303, 3.307, 3.309, 3.385 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an 
appropriate claim form, instructions for completing it, and 
notice of information necessary to complete the claim if it 
is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a 
duty to notify the claimant of the information and evidence 
needed to substantiate and complete a claim, i.e., evidence 
of veteran status; existence of a current disability; 
evidence of a nexus between service and the disability; the 
degree of disability, and the effective date of any 
disability benefits.  The veteran must also be notified to 
submit all evidence in his possession, what specific evidence 
he is to provide, and what evidence VA will attempt to 
obtain.  VA thirdly has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  This 
includes obtaining all relevant evidence adequately 
identified in the record, and in some cases, affording VA 
examinations.  38 U.S.C.A. § 5103A. 

In this case, there is no issue as to providing an 
appropriate application form or completeness of the 
application.  Written notice provided in September 2004 
correspondence, issued prior to the May 2005 rating decision, 
amongst other documents considered by the Board, generally 
fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a 
failure to provide notice addressing the type of evidence 
necessary to establish a disability rating and an effective 
date for the disability on appeal.  The failure to provide 
notice of the type of evidence necessary to establish a 
disability rating and an effective date for the disability on 
appeal is harmless because the Board has determined that the 
preponderance of the evidence is against the claim.  Hence, 
any questions regarding what rating or effective date would 
be assigned are moot.

The veteran has been afforded a meaningful opportunity to 
participate in the adjudication of his claim, to include the 
opportunity to present pertinent evidence and testimony.  The 
appellant was not prejudiced by VA's fulfillment of the 
provisions of 38 U.S.C.A. § 5103, and the Board may proceed 
to decide this appeal.  Simply put, there is no evidence any 
VA error in notifying the appellant reasonably affects the 
fairness of this adjudication.  ATD Corp. v. Lydall, Inc., 
159 F.3d 534, 549 (Fed. Cir. 1998).

Finally, VA has secured all available pertinent evidence and 
conducted all appropriate development.  There is no pertinent 
evidence which is not currently part of the claims file. 
Hence, VA has fulfilled its duty to assist the appellant in 
the prosecution of his claim.


Background

The veteran's separation from service form is of record.  
However, the service department medical records are not 
available, and they may have been lost in a 1973 fire at the 
National Personnel Records Center (NPRC) in St. Louis, 
Missouri. The United States Court of Appeals for Veterans 
Claims (Court) has indicated that in such cases, the Board 
has a heightened obligation to explain its findings and 
conclusions, and to consider carefully the requirement that 
the benefit of the doubt be resolved in favor of the veteran. 
O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board 
will comply with this heightened obligation in addressing the 
veteran's claim.

In August 2004 the veteran submitted a private medical record 
dated July 2000 noting that it was from Robert Hunter, M.D.  
This record revealed severe to profound left ear hearing loss 
and mild to severe sensorineural hearing loss in the right 
ear. The examiner noted this was noise induced hearing loss.  

At a September 2005 VA ear disease examination the veteran's 
claims file was reviewed.  The veteran had difficulty hearing 
and his wife helped with his history.  He reported serving as 
a rifle instructor in basic training and did not use hearing 
protection in service.  He reported bilateral hearing loss 
and tinnitus since discharge from service.  He denied 
vertigo, balance or gait problems, ear discharge or pain.  He 
was never treated for any ear disorder.  The examiner noted 
no malignant or benign neoplasm of the ears, no auricle 
deformity, edema, scaling or discharge. The ear canals and 
tympanic membranes were normal.  Following an audiological 
evaluation the examiner opined that a sensorineural hearing 
loss could be caused by noise exposure as reported by the 
veteran, "but not to this degree or asymmetry without a 
particular incident, accident/injury, or unilateral exposure 
to the specific ear."  

At the February 2007 Board hearing, the veteran testified 
that his hearing was damaged as a result of noise exposure 
while acting as a rifle instructor during his eight weeks of 
basic training in 1942.  He was also reportedly exposed to 
loud noises while serving overseas. He testified that he made 
no complaints or received any treatment for any ear injury or 
hearing loss complaints while in service.  After service he 
worked as a radio and electronics repairman but was not 
exposed to noise.  Decades after service he was seen by a 
doctor at Penn State University in the late 1950s or early 
1960s, but those records were all destroyed.  He was also 
seen by Dr. Hunter.  The Board notes that the file contains a 
July 2000 audiological record from Dr. Hunter noting 
bilateral hearing loss, but offering no nexus medical 
opinion.   

Analysis

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Certain 
enumerated disorders, to include sensorineural hearing loss, 
may be presumed to have been incurred during service if 
manifested to a compensable degree within one year following 
separation from active duty.  38 U.S.C.A. §§ 1101, 1111, 
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

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 U.S.C.A. § 1113(b); 38 C.F.R. § 
3.303(d).

In order to establish service connection for a claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service insurgence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).

For the purposes of applying the laws administered by VA, 
impaired hearing will be considered to be a disability when 
the auditory threshold in any of the frequencies 500, 1000, 
2000, 3000, 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.

In deciding whether the veteran has a current disability due 
to military service, it is the responsibility of the Board to 
weigh the evidence and decide where to give credit and where 
to withhold the same and, in so doing, accept certain medical 
opinions over others.  Schoolman v. West, 12 Vet. App. 307, 
310-11 (1999).

The chronicity provision of 38 C.F.R. § 3.303(b) is 
applicable where the evidence, regardless of its date, shows 
that the veteran had a chronic condition in service or during 
an applicable presumptive period and still has such 
condition.  Such evidence must be medical unless it relates 
to a condition as to which, under the United States Court of 
Appeals for Veterans Claims case law, lay observation is 
competent.  Savage v. Gober, 10 Vet. App. 488, 498 (1997); 38 
C.F.R. § 3.303(b).  In addition, if a condition is not shown 
to be chronic, then generally a showing of continuity of 
symptomatology and competent evidence relating the present 
condition to that symptomatology are required.  Id.

Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

It is VA's defined and consistently applied policy to 
administer the law under a broad interpretation, consistent, 
however, with the facts shown in every case.  When, after 
careful consideration of all procurable and assembled data, a 
reasonable doubt arises regarding service origin, the degree 
of disability, or any other point, such doubt will be 
resolved in favor of the claimant.  By reasonable doubt it is 
meant that an approximate balance of positive and negative 
evidence exists which does not satisfactorily prove or 
disprove the claim.  It is a substantial doubt and one within 
the range of probability as distinguished from pure 
speculation or remote possibility.  38 U.S.C.A. § 5107(b); 38 
C.F.R. § 3.102.

Notwithstanding the veteran's assertion of hearing problems 
in the 1950's to early 1960's, a bilateral hearing loss 
disorder is not clinically shown until July 2000, i.e., 
decades after his service separation.  Such a lapse of time 
is a factor for consideration in deciding a service 
connection claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. 
Cir. 2000).  
 
Further, there is no post service clinical evidence of a 
continuity of symptomatology pertaining to any hearing loss 
prior to 2000.  The record is devoid of any medical opinion 
which relates a currently diagnosed bilateral hearing loss to 
service or to any event therein.  Consequently, direct 
service connection, i.e., on the basis that chronic 
disability became manifested in service and has persisted 
since, is not warranted.  Moreover, as the 2000 diagnosis of 
bilateral sensorineural hearing loss came well after the 
veteran's service separation, presumptive service connection 
for a sensorineural hearing loss is not warranted. 

Without competent evidence of hearing loss in service, 
without competent evidence of a sensorineural hearing loss in 
the first post service year, and without competent evidence 
of a nexus between any current bilateral hearing loss and 
service, service connection must be denied.

In reaching this decision the Board considered the 
appellant's sincerely held personal opinion that he has a 
bilateral hearing loss disorder that is related to his 
military service. Even assuming, however, that the appellant 
sustained an in- service hearing injury, the absence of any 
competent medical evidence showing a nexus to service and/or 
a continuity of symptomatology during the decades since 
discharge is fatal to this claim.  Moreover, the appellant as 
a lay person untrained in the field of medicine is not 
competent to offer an opinion addressing the etiology of his 
condition. Espiritu, 2 Vet.App. 492 (1992).

Finally, the Board considered the doctrine of reasonable 
doubt, however, the preponderance of the evidence is against 
the appellant's claim, the doctrine is not for application.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  
 



ORDER

Entitlement to service connection for bilateral hearing loss 
is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs