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