Citation Nr: 0809818 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-14 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from September 1962 to September 1965. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2003 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in Detroit, Michigan, (hereinafter RO). In September 2006, the veteran withdrew his appeal regarding service connection for a lung disorder; as such, this matter is no longer before the Board. FINDINGS OF FACT 1. The weight of the competent evidence as to whether the veteran has hearing loss in the right ear as a result of service is in relative balance. 2. Current hearing loss disability in the left ear is not demonstrated. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the veteran's favor, right ear hearing loss was incurred as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Left ear hearing loss was not incurred in or aggravated by service and sensironeural hearing loss in the left ear may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. In a letter dated in December 2004, the RO advised the claimant of the information necessary to substantiate the claim at issue. He was also informed of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was also told to provide any relevant evidence or information in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was provided with information regarding ratings and effective dates by way of a March 2006 letter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although these letters were not sent until after the initial adjudication of the claims, it was followed by readjudication and the issuance of supplemental statements of the case in August 2006 and October 2007. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). There is no indication that there has been any notification error that has affected the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Therefore, the Board finds that there was no prejudicial error; notification errors did not affect the essential fairness of the adjudication. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the Board finds that the duty to notify has been satisfied. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA made reasonable efforts to obtain relevant post-service records adequately identified by the veteran. Specifically, the information and evidence that has been associated with the claims file includes the veteran's service medical records, post service private treatment records and a VA examination that includes an opinion as to whether the veteran's hearing loss was sustained in service. While the Board has considered the request of the veteran's representative that the case be remanded for a "specialist" to determine if the veteran's hearing loss originated in service, as set forth below, the record does contain a thorough medical opinion by a VA audiologist that adequately addresses this matter and fulfills the duty to assist the veteran. 38 C.F.R. § 3.159(c)(4); see Charles v. Principi, 16 Vet. App. 370 (2002). As such, the additional delay in the adjudication of the veteran's case which would result from obtaining the requested opinion would not be justified. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria/Analysis A. Hearing Loss It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including sensorineural hearing loss, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a 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). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service- connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 8 Vet. App. 374 (1995). To establish the existence of a current disability, hearing status must meet the pure tone and speech recognition criteria outlined in 38 C.F.R. § 3.385. In order to establish a current disability pursuant to these criteria, at least one of the threshold pure tone levels at 500, 1000, 2000, 3000, or 4000 Hertz, must measure more than 40 decibels, or at least 3 of these 5 threshold levels must measure more than 25 decibels, or speech recognition must be lower than 94 percent. With the above criteria in mind, the relevant facts will be summarized. The service medical records, as interpreted by a VA audiologist who reviewed them in July 2005, showed the veteran passing whispered and spoken voice testing upon hearing evaluation in 1962, 1963 and 1965. He noted that this testing could not detect high frequency hearing loss but that the 1962 and 1965 evaluations showed audiograms that reflected normal hearing limits in each ear. The post service evidence includes private clinical reports dated in October 2002, at which time the veteran described having problems with hearing loss in the right ear for 15 to 20 years. He also reported a long standing history of unsteadiness, with increasing problems with dizziness in December 2001 that included episodes of vertigo. Audiometric testing at that time demonstrated severe sensironeural hearing loss in the right ear with 0 percent speech discrimination. Hearing in the left ear was described as normal except for "a mild notch at 4000 Hertz." Speech discrimination in the left ear was 100 percent. It was the examiner's opinion that the veteran's problems were "probably related to a right ear vestibulopathy." He noted that the veteran had dizziness that was "quite complex," and that the presence of hearing loss in the right ear was a "major lateralizing sign." He also opined that the veteran's problems could be the result of a "migraine- associated dizziness." Another private physician opined in November 2002 that the veteran had vertigo and hearing loss that was "most likely due to peripheral vestibular disease." A March 2004 clinical report of record includes an opinion from a private physician that the veteran's "long-term headaches" and hearing loss were likely related to the veteran's exposure to engine and aircraft noise during the veteran's service in the United States Navy. With respect to this exposure, the veteran has asserted that he served aboard an aircraft carrier, the U.S.S. Essex, for two years, and that he worked around jets, helicopters and fixed wing aircraft. The service personnel records indicate that the veteran's service with the United States Navy included duty aboard the U.S.S. Essex. These records also reflect service at a Naval Air Station. As such, for the purposes of this decision, the veteran's exposure to aircraft noise during service will be presumed. As set forth above, the veteran was afforded a VA audiometric examination in July 2005 that included a review of the pertinent evidence contained in the claims file. The audiological evaluation at that time showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 65 85 95 LEFT 10 5 0 5 35 Speech audiometry revealed speech recognition ability of 20 percent in the right ear and 96 percent in the left ear. These results demonstrate current hearing loss disability in the right ear but not the left ear as defined by 38 C.F.R. § 3.385. In discussing the pertinent history of noise exposure, the examiner noted that in addition to the in-service exposure to aircraft noise, the veteran was exposed to occupational noise after service for over 30 years coincident with his job as a machinist. Following the examination, the examiner's opinion was as follows: Today's results show a decrease in hearing from the 1962 and 1965 evaluations, but are similar to the results of the 2004 evaluation. The results of today's evaluation shows a moderate to profound SNHL [sensorineural hearing loss] AD [of the right ear]. Testing AS [of the left ear] shows hearing to be WNL [within normal limits] with a mild SN [sensorineural] notch at 4 kHz. Due to the fact that the evaluations from 1962 and 1965 (when he was in service) show normal hearing and that he had occupational noise exposure, it is felt that the hearing loss is not related to military noise exposure. Also of record is a report from an August 2007 neurological examination conducted to determine if the veteran's dizziness was etiologically related to migraine headaches, for which service connection was granted by an August 2006 rating decision. It was concluded following the examination that the veteran's dizziness and vertigo were at least as likely as not related to the veteran's service-connected migraine headaches. Following this examination, an October 2007 rating decision added dizziness and vertigo to the service connected disability attributed to migraine headaches, and increased the rating for this disability cluster to 50 percent. As hearing loss disability in the left ear is not currently demonstrated as defined by regulation, service connection for left ear hearing loss cannot be granted. 38 C.F.R. § 3.385; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury). With regard to the hearing loss in the right ear, while there is some negative medical evidence; in particular, the opinion following the July 2005 VA examination and the post-service exposure to occupational noise, the record reveals positive evidence in the form of the presumed in-service exposure to aircraft noise and the March 2004 medical opinion linking hearing loss to service. In addition, as service connection has been granted for a cluster of symptoms manifested as migraine headaches, dizziness and vertigo, given the discussion as to the complexity of this cluster of symptoms by the private examiner in October 2002, the attribution of the veteran's hearing loss to right ear vestibulopathy at that time, and the additional November 2002 opinion linking right ear hearing loss and vertigo to peripheral vestibular disease, it would not be reasonable to conclude definitively that the veteran's right ear vestibulopathy is completely unrelated to this service-connected cluster of symptoms. 38 C.F.R. § 3.310. In short, the Board finds the weight of the positive and negative evidence to be in approximate balance. Unless the preponderance of the evidence is against a claim, it cannot be denied. Gilbert, 1 Vet. App. at 49. In this case, the preponderance of the evidence is not against the veteran's claim for service connection for hearing loss in the right ear. Thus, without finding error in the RO's action, the Board will resolve all reasonable doubt in the veteran's favor and conclude that service connection may be granted for hearing loss in the right ear. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hearing loss in the right ear is granted. Service connection for hearing loss in the left ear is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs