Citation Nr: 0809768 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 03-20 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from January 1982 until January 1985, and from October 1987 until August 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. This claim was previously before the Board in October 2005 and August 2007, at which time it was remanded for additional development of the record. FINDING OF FACT The competent medical evidence of record does not demonstrate that the veteran has a right ear hearing loss disability for VA purposes. CONCLUSION OF LAW Right ear hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify 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); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, July 2003, February 2006, and August 2006 letters from the AOJ to the appellant satisfied VA's duty to notify. The letters informed the veteran of what evidence was necessary to establish entitlement to the benefit he claimed and advised him of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claim and what he could do to assist. In addition, the 2006 letters asked the appellant to provide any evidence in his possession that pertained to his claim, and the final letter informed the veteran that a disability rating and effective date would be assigned in the event that he was awarded the benefit sought. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records and reports of VA and private post-service examinations. Additionally, the veteran's statements in support of his appeal are affiliated with the claims folder and the veteran was afforded VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board, after careful review of the veteran's statements, service records, and medical records, has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Legal Criteria and Analysis Service connection will be granted if the veteran shows he has a disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre- existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2007). Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Court has also indicated that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels reveal some degree of hearing loss. Id. at 157 (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al eds., 1988)). The veteran contends that service connection is warranted for a right ear hearing loss disability. In order to establish service connection, the veteran must first provide evidence of a current right ear hearing loss disability. However, the record does not reflect that the veteran has a current right ear hearing loss disability for VA purposes. See C.F.R. § 3.385. The veteran was afforded a VA audiological examination in March 2007. The examination revealed that pure tone thresholds in the veteran's right ear were 25, 15, 20, 20, and 20 decibels at 500, 1000, 2000, 3000, and 4000 Hertz. The reported speech recognition score was 98 percent for the right ear. The results of this examination show that the veteran is not exhibiting a disability within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. § 3.385. Further, following the examination, the VA audiologist agreed that "the veteran has normal hearing in his right ear" and "therefore, there is no hearing loss in [the veteran's] right ear that can be related to military service." See March 2007 Audiological Examination Report. In addition, an alternate examiner reviewed the VA examination results and concluded that "there is no acoustic damage [indicated]." See October 2007 Addendum to March 2007 Audiological Examination Report. The Board notes that the examination report and addendum fail to reconcile the veteran's prior audiological findings with his current lack of a disability. However, the Board finds that no useful purpose would be served in receiving such an opinion, as there is no competent medical evidence of a current disability. Therefore, in the absence of any evidence to the contrary, the Board must conclude that there has been no demonstration of record by competent clinical evidence that the veteran has current right ear hearing loss disability for VA purposes. There can be no valid claim for service connection without a current disability. Brammer, 3 Vet.App. at 225. The veteran contends that he has a current right ear hearing loss disability related to service. The veteran's opinion lacks probative value, however, as he is a lay person without medical expertise. Espiritu, 2 Vet. App. at 494-95. The evidence of the record, therefore, is of greater probative value than the veteran's statements in support of his claim. As the evidence of record establishes that the veteran does not have a current hearing loss disability for VA purposes, the Board finds that the preponderance of the evidence in this case falls against the claimant, making the benefit of the doubt rule inapplicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for right ear hearing loss disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs