Citation Nr: 0809960 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-21 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Barnard, Senior Counsel INTRODUCTION The veteran served on active duty from November 1942 to November 1945. This appeal arose before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans' Affairs (VA) Regional Office, which denied entitlement to the requested benefit. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the veteran has a current bilateral hearing loss which is due to any incident or event in active military service. CONCLUSION OF LAW Chronic bilateral hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1113, 1137, 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) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error, and VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson,487 F.3d. 881 (Fed. Cir. 2007). In April 2004, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claims and its duty to assist him in substantiating his claims under the VCAA. The April 2004 letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claims, such as records in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send medical records showing he has a current disability as well as records showing a relationship between his claimed disabilities and service, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide to provide "any evidence in your possession that pertains to your claim." See 38 C.F.R. § 3.159(b)(1). The Board finds that the content of the April 2004 letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was advised of his opportunities to submit additional evidence. Subsequently, in June 2005, VA provided him with yet an additional 60 days to submit more evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In addition, there is no indication that a VA examination is needed in this case. There is no indication that there was any hearing loss in service and there is no evidence, save for the veteran's assertions, that any current hearing loss is related to his period of service. See 38 C.F.R. § 3.159(c)(4) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Indeed, the veteran does not report a continuity of hearing impairment since service. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Thus, the Board finds that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The Board also finds that VA has satisfied its duty to assist the veteran in advising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Thus, no useful purpose would be served in remanding this case for more development as it would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. As such, the Board agrees with the veteran's representative that given the veteran's age, it would be "especially detrimental" to remand this claim for further development. In addition, to whatever extent the recent decision of the Court in Dingess v. Nicholson, supra, 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 herein is being denied, such matters are moot. II. Laws and regulations, factual background, and analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). To establish service connection, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for a hearing loss disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if a sensorineural- type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 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, 1,000, 2,000, 3,000 or 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of frequencies 500, 1,000, 2,000, 3,000 or 4,000 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. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). 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); 38 C.F.R. § 3.102. 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. The veteran has argued that he has a current hearing loss disability that is directly related to his period of service. He said that he had been exposed to small weapons fire during his time as a drill instructor. He noted that he had been required to make many trips to the firing range, all without ear protection. The evidence of record shows that the veteran served from November 1942 to November 1945. His DD-214 referred to his military occupational specialty (MOS) of supply clerk. His Separation Qualification Record showed that he had been a drill instructor for nine months. For 23 months, he had served as a supply clerk. He was in charge of the section that issued shoes at overseas replacement depots. The veteran's service medical records are not available, having apparently been destroyed by a fire at the National Personnel Records Center (NPRC) in 1973. A search of the Surgeon General's Office for records was negative for any reports relating to the veteran. VA records developed between 2003 and 2004, as well as private treatment records from 2005, show a current hearing loss. He had also been fitted for hearing aids. There was no comment made in any of the records that suggested a relationship between the hearing loss and the veteran's period of service. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection. The objective record does not indicate that any hearing loss was present either in service or to a compensable degree within one year of discharge, or any indication that his current hearing loss, which was not objectively demonstrated until some 60 years after separation, is in any way related to service, to include any small arms fire he may have been exposed to during his nine months as a drill instructor. It is true that the veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.159, 3.303(a); Jandreau; Buchanan, supra. Here, however, the evidence does not show that the veteran, who is competent to comment on his post-service symptoms, has the requisite expertise to render a medical diagnosis or to comment on a question of medical causation or aggravation. However, the Board cannot entertain the appellant's unsupported lay statements on medical issues. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The appellant, as a lay person, lacks the requisite medical knowledge and expertise sufficient to proffer an expert medical opinion. Thus, as the preponderance of the evidence is against the veteran's claim for service connection for a bilateral hearing loss. ORDER Entitlement to service connection for a bilateral hearing loss is denied ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs