Citation Nr: 0810120	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  05-14 101A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B.W. Hennings, Associate Counsel




INTRODUCTION

The veteran served on active duty from December 1970 to 
December 1974.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2004 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia.

The record reveals that in June 2006 the veteran failed to 
report for a requested hearing before a Veterans Law Judge.  
Accordingly, the veteran's claim will be considered without 
the benefit of such hearing.  See 38 C.F.R. § 20.704(d).


FINDINGS OF FACT

1.  The veteran had left ear hearing loss upon entrance into 
service.

2.  The veteran's left ear hearing loss did not increase in 
severity during service and was found to be normal upon 
completion of service.

3.  The veteran was not shown to have hearing loss of either 
ear to a degree of 10 percent within one year of separation 
from active military service.

4.  The veteran does not have bilateral hearing loss due to 
service.



CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by 
active military service, and bilateral hearing loss may not 
be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 
1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal criteria

Applicable law provides that service connection will be 
granted if it is shown that the veteran suffers from 
disability resulting from an injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in active military service.  38 U.S.C.A. § 1110; 38 
C.F.R. § 3.303.

That an injury occurred in service alone is not enough; there 
must be chronic disability resulting from that injury.  If 
there is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity.  38 
C.F.R. § 3.303(b).

If a preexisting disorder is noted upon entry into service, 
service connection may be granted based on aggravation during 
service of that disorder.  38 U.S.C.A. § 1153; 38 C.F.R. § 
3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. 
Cir. 2004).  A preexisting injury or disease will be 
considered to have been aggravated by active military, naval 
or air service, where there is an increase in disability 
during such service, unless there is a specific finding that 
the increase in disability is due to the natural progress of 
the disease.  38 U.S.C.A. § 1153; 38 C.F.R.§ 3.306(a).  
Independent medical evidence is needed to support a finding 
that the preexisting disorder increased in severity in 
service.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 
(1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).

Certain chronic disabilities, such as a sensorineural hearing 
loss, are presumed to have been incurred in service if 
manifest to a compensable degree within one year of discharge 
from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 
3.309.

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).

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 (2007).

History

The evidence is against a finding that chronic bilateral 
hearing loss was manifested or aggravated during service.  
The first evidence of hearing loss is a service induction 
examination report from August 1970.  The report notes pure 
tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
N/A
25
LEFT
20
10
25
N/A
55

Due to an auditory threshold greater than 40 decibels at 4000 
Hertz, this data indicates left ear hearing loss under the VA 
criteria.  This data indicates normal right ear hearing.  The 
remainder of the service medical records reveals no findings 
indicating hearing loss in either ear.  In fact, the exit 
examination report from May 1974 shows the veteran to have 
normal hearing in both ears.  The exit examination report 
shows:




HERTZ



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

The first medical record discussing the veteran's hearing 
acuity after discharge from service is an audiological report 
from the Tennessee Valley Authority (TVA) dated July 1980.  
This report indicates left ear hearing loss and normal right 
ear hearing.  The report shows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
20
15
LEFT
0
0
55
55
60

Analysis

The veteran contends that his bilateral hearing loss was 
caused by exposure to a rocket exploding near him while he 
served in the Air Force in the Republic of Vietnam.

With regards to the veteran's left ear, the Board recognizes 
that the veteran was shown to have left ear hearing loss upon 
entry to service, and that service connection may be granted 
for a preexisting disability that is aggravated by service.  
However, the subsequent medical records do not show that the 
veteran experienced any increase in severity of left ear 
hearing loss during service.  In fact, as noted above, when 
the veteran's hearing acuity was tested for separation from 
service he was not shown to have hearing loss in the left ear 
at all.  Since the evidence indicates that the veteran's left 
ear hearing acuity improved in service, the Board finds that 
presumption of aggravation found in 38 U.S.C.A. § 1153 and 38 
C.F.R. § 3.306 does not arise.  Brower v. Derwinksi, 1 Vet. 
App. 204, 206-207 (1991).

With regards to the veteran's right ear, the record clearly 
shows that the veteran did not have right ear hearing loss 
during the service or in July 1980, more than five years 
after discharge from service.  Since the veteran was not 
shown to have right ear hearing loss during service, or 
within one year of discharge from service, and since there is 
no medical evidence linking a current right ear hearing loss 
to service, service connection for right ear hearing loss is 
not warranted.

The preponderance of the evidence is against entitlement to 
service connection for bilateral hearing loss.  Thus, service 
connection for bilateral hearing loss must be denied.

Duty to notify and assist

VA's duties to notify and assist claimants in substantiating 
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

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 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
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 his or her possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  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, 19 Vet. App. 103 (2005).  The 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, defined to 
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.  See Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

By a July 2004 letter the RO sent the veteran the required 
notice.  The letter specifically informed him of the type of 
evidence needed to support the claim, who was responsible for 
obtaining relevant evidence, where to send the evidence, and 
what he should do if he had questions or needed assistance.  
He was, in essence, told to submit all pertinent evidence he 
had in his possession pertaining to the claim.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A March 
2006 letter informed the veteran of the type of evidence 
necessary to establish disability ratings and effective dates 
in compliance with Dingess, supra.  

With respect to VA's duty to assist the veteran, the RO has 
obtained the veteran's service medical records and private 
medical records.  In this case, a VA medical examination is 
not necessary.  There is sufficient competent medical 
evidence to decide the claim, based on the service induction 
and exit examinations and the TVA medical report.  See 38 CFR 
3.159(c)(4).  The veteran has been accorded ample opportunity 
to present evidence and argument in support of the appeal and 
he has done so.  Neither the veteran nor his representative 
has indicated that there are any additional pertinent records 
to support the veteran's claim.  

In sum, the Board is satisfied that the originating agency 
properly processed the veteran's claims after providing the 
required notice and that any procedural errors in the 
development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

ORDER

Entitlement to service connection for bilateral hearing loss 
is denied.




____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs