Citation Nr: 0810742	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  99-03 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim for service connection for dental trauma for 
compensation purposes.

2.  Entitlement to service connection for bone loss and 
infection of the mouth.

3.  Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Morales, Associate Counsel




INTRODUCTION

The veteran served on active duty from June 1970 to December 
1971.

In two separate December 1995 rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee, the veteran was granted eligibility for 
dental treatment and denied service connection for dental 
trauma on the basis that his claim was not well-grounded.  
The claim for service connection for dental trauma for 
compensation purposes was again denied on the basis that his 
claim was not well-grounded in a November 1997 rating 
decision, and again in the February 1998 rating decision from 
which this appeal originates.

This appeal comes before the Board of Veterans' Appeals 
(Board) from the February 1998 rating decision which denied 
the veteran's claims for service connection for dental trauma 
and for bone loss and infection of the mouth, and from a 
November 2002 rating decision which denied service connection 
for hearing loss.  The Board remanded the claims for 
additional development in June 2005.


FINDINGS OF FACT

1.  A December 1995 rating decision, which denied a claim of 
entitlement to service connection for dental trauma as not 
well-grounded was not appealed and became final. 
 
2.  The evidence obtained since the December 1995 rating 
decision was not previously of record, relates to an 
unestablished fact necessary to substantiate the claim, and 
raises a reasonable possibility of substantiating the claim. 
 
3.  The veteran underwent teeth extractions in service due to 
non-restorable dental caries, but is not shown to have 
sustained dental trauma resulting in loss of teeth.


 
4.  The veteran underwent teeth extractions in service due to 
non-restorable dental caries, but is not shown to have 
sustained dental trauma or disease resulting in bone loss or 
infection.

5.  The medical evidence shows that the veteran's hearing 
loss does not qualify as a current disability for VA 
treatment purposes.


CONCLUSIONS OF LAW

1.  New and material evidence having been received, the claim 
for service connection for dental trauma is reopened.  38 
U.S.C.A. §§ 5103, 5103A, 7103(a), 7104, 7105 (West 2002 & 
Supp 2007), 38 C.F.R. §§ 3.156, 3.159 (2007). 
 
2.  The criteria for entitlement to service connection for 
dental trauma for purposes of payment of disability 
compensation have not been met.  38 U.S.C.A. §§ 1110, 1131, 
5107, 7104 (West 2002 & Supp 2007), 38 C.F.R. §§ 3.102, 
3.159, 3.381 (2007).

3.  The criteria for entitlement to service connection for 
bone loss and infection of the mouth for purposes of payment 
of disability compensation have not been met.  38 U.S.C.A. §§ 
1110, 1131, 5107, 7104 (West 2002 & Supp. 2007), 38 C.F.R. 
§§ 3.381, 4.150, 17.161 (2007).

4.  The criteria for entitlement to service connection for 
hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 
5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran claims he currently has dental problems related 
to being inadvertently struck in the face in service.  He 
also contends that he currently has hearing loss which is 
related to service.

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the VA has a duty to notify and assist veterans in 
substantiating a claim for VA benefits.  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 
veteran 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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the veteran 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 veteran is expected to provide; and (4) 
must ask the veteran to provide any evidence in his 
possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).

Here, the Board is granting the veteran's request to reopen 
the claim for service connection for dental trauma.  Thus, no 
further discussion of the VCAA in regards to reopening of 
that claim is required, however the Board will address VA's 
requirement that it provide notice to the veteran of the 
evidence and information that is necessary to establish 
entitlement to the underlying claim, in this instance, 
service connection for dental trauma for compensation 
purposes.  

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the AOJ.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a veteran might have been able to infer what evidence 
the VA found lacking in the veteran's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the AOJ), see also 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).

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial AOJ decision by way of a letter 
sent to the veteran in May 2003 that fully addressed all four 
notice elements.  The letter informed the veteran of what 
evidence was required to substantiate the claims and of the 
veteran's and VA's respective duties for obtaining evidence.  
The veteran was also told that it was his responsibility to 
submit records that would support his claim.  In essence, he 
was asked to submit evidence and/or information in her or his 
possession to the AOJ.  Although the notice letter was not 
sent before the initial AOJ decision in this matter, the 
Board finds that this error was not prejudicial to the 
veteran because the actions taken by VA after providing the 
notice have essentially cured the error in the timing of 
notice.  Not only has the veteran been afforded a meaningful 
opportunity to participate effectively in the processing of 
her or his claim and given ample time to respond, but the AOJ 
also readjudicated the case by way of October 2003 and 
September 2007 supplemental statements of the case after the 
notice was provided.  For these reasons, it is not 
prejudicial to the veteran for the Board to proceed to 
finally decide this appeal as the timing error did not affect 
the essential fairness of the adjudication.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the veteran with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Although the veteran did not receive notice regarding 
disability evaluations and effective dates, the Board finds 
he was not prejudiced thereby, as service connection is being 
denied herein.

In addition, the duty to assist the veteran to develop the 
claim is fulfilled.  VA 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.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained and the veteran 
has submitted private and VA treatment records.  The veteran 
was afforded a VA medical examination for his hearing in 
February 2006.  Although he was not afforded a VA examination 
for his dental claim, the Board finds that no such 
examination is necessary, as there is no evidence of an in-
service trauma or disease which caused the veteran's teeth to 
be removed, and as all of the veteran's dental problems have 
been attributed to extensive caries.  See McLendon v. 
Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical 
examination when it is necessary to decide the claim).

Significantly, neither the veteran 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 veteran is required to 
fulfill VA's duty to assist the veteran 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).

The record establishes the veteran was afforded a meaningful 
opportunity to participate in the adjudication of the claims.  
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  All 
requirements of the duty to notify the veteran and the duty 
to assist the veteran are met.

New and Material Evidence to Reopen a Claim for Dental Trauma

In June 2005, the Board remanded the claim for service 
connection for dental trauma, characterizing the claim as one 
to reopen, which would require new and material evidence.  
The VCAA eliminated the concept of a well-grounded claim, and 
Section 7(b) of the VCAA states that, in the case of a claim 
for benefits denied as being not well-grounded between July 
14, 1999, and November 9, 2000, the claim can be 
readjudicated upon the request of the claimant or the 
Secretary' s own motion as if the denial had not been made.  
The Board has considered whether this claim may be 
adjudicated on the merits.  However, the December 1995 denial 
of the claim for service connection for dental trauma was 
issued before July 14, 1999, and so does not meet the 
criteria of Section 7(b).  New and material evidence is 
required to reopen the claim.

The veteran contends that he is entitled to service 
connection for dental trauma.  As indicated above, this claim 
was previously considered and denied by the RO in December 
1995.  The RO's December 1995 decision represents a final 
decision.  38 U.S.C.A. § 7103(a), 38 C.F.R. §§ 20.1100(a), 
20.1104.  As a general rule, a claim shall be reopened and 
reviewed if new and material evidence is presented or secured 
with respect to a claim that is final. 3 8 U.S.C.A. § 5108, 
38 C.F.R. § 3.156.  When a claimant seeks to reopen a final 
decision, the first inquiry is whether the evidence presented 
or secured after the last disallowance is 'new and material.'  
Under 38 C.F.R. § 3.156(a), new evidence means evidence not 
previously submitted to agency decision makers.  Material 
evidence means evidence that, by itself or when considered 
with previous evidence of record, relates to an unestablished 
fact necessary to substantiate the claim.  New and material 
evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial 
of the claim sought to be reopened and must raise a 
reasonable possibility of substantiating the claim.  38 
C.F.R. § 3.156(a). 
 
When determining whether a claim should be reopened, the 
credibility of the newly submitted evidence is presumed.  
Justus v. Principi, 3 Vet. App. 510 (1992).  In order for 
evidence to be sufficient to reopen a previously denied 
claim, it must be both new and material.  If the evidence is 
new, but not material, the inquiry ends and the claim cannot 
be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  
Furthermore, 'material evidence' could be "some new evidence 
[that] may well contribute to a more complete picture of the 
circumstances surrounding the origin of the veteran's injury 
or disability, even where it will not eventually convince the 
Board to alter its rating decision."  Hodge v. West, 155 F. 
3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new 
and material evidence has been submitted, the claim must be 
reopened.  The VA may then proceed to the merits of the claim 
on the basis of all of the evidence of record. 
 
In this case, in an August 2007 rating decision, the RO 
treated the veteran's claim as reopened based on new and 
material evidence.  The Board agrees with the RO that the 
veteran's claim should be reopened.  See Barnett v. Brown, 83 
F.3d 1380 (Fed. Cir 1996).  At a minimum, the veteran's 
testimony before a Decision Review Officer in June 1999 
provides a more complete picture of the case.  Additional 
treatment records have also been obtained.  38 C.F.R. 
§ 3.156.  New and material evidence having been received, the 
claim is reopened. 

Once a claim has been reopened, the claim must be considered 
on the merits, and either decided, or, if there is 
insufficient information for a determination on the merits, 
the claim may be remanded.  In this case, a VA examination 
would not assist the VA in deciding the claim, and evidence 
necessary to a decision on the merits is of record.  As noted 
above, the Board has determined that all duties to assist and 
notify have been met, and the claim has been fully developed, 
so review on the merits may proceed.



Claims for Service Connection

Service connection may be granted for a disability due to a 
disease or injury which was incurred in or aggravated by 
active duty.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.  Service 
connection may be awarded for a "chronic" condition when a 
disease defined by statute or regulation as a chronic disease 
manifests itself and is identified as such in service (or 
within the presumption period under 38 C.F.R. § 3.307), and 
the veteran presently has the same condition.  Service 
connection may be granted when a disease manifests itself 
during service (or during the presumptive period) but is not 
identified until later, there is a showing of continuity of 
symptomatology after discharge, and medical evidence relates 
the symptomatology to the veteran's present condition.  38 
C.F.R. § 3.303, see Savage v. Gober, 10 Vet. App. 488, 495-98 
(1997).

In order for a claim to be granted, there must be competent 
evidence of current disability; of incurrence or aggravation 
of a disease or injury in service; and of a nexus between the 
in-service injury or disease and the current disability.  See 
generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), 
cert. denied sub nom., Epps v. West, 18 S. Ct. 2348 (1998), 
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 
604 (Fed. Cir. 1996) (table).  Medical evidence is required 
to prove the existence of a current disability and to fulfill 
the nexus requirement.

1.  Dental Trauma

In addition to the service connection criteria set forth 
above, to establish entitlement to service connection for a 
tooth, the veteran must have sustained a combat wound or 
other in-service trauma.  See 38 U.S.C.A. § 1712; 38 C.F.R. § 
3.381(b).  The significance of finding a dental condition is 
due to in-service trauma is that a veteran will be eligible 
for VA outpatient dental treatment, without being subject to 
the usual restrictions of a timely application and one-time 
treatment.  38 C.F.R. § 17.161(c).  Mere dental treatment or 
cracking a tooth while eating is not sufficient to establish 
eligibility for treatment.  Similarly, broken bridgework due 
to injury is not dental trauma because it must be the injury 
of a natural tooth.  VAOPGCPREC 5-97. 
 
Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable 
missing teeth, dental or alveolar abscesses, and periodontal 
disease are to be considered service connected solely for the 
purpose of establishing eligibility for outpatient dental 
treatment as provided in 38 C.F.R. § 17.161.  The veteran, 
who is now edentulous (no upper or lower teeth) has already 
been granted service connection for the purposes of 
treatment.  No claim for dental treatment has been considered 
in this appeal.  As the veteran has previously sought service 
connection for loss of teeth due to dental trauma, the 
veteran's reopened claim must be considered in light of all 
evidence of record, not just the evidence submitted since the 
last final decision. 
 
At his June 1999 hearing, the veteran stated that he was 
inadvertently hit in the jaw with an automatic gun while on 
active duty.  He stated that teeth were removed and he now 
has a knot on the side of his face.  Service medical records 
disclose that the veteran was missing some teeth at the time 
of entry into service in 1970.  During service, several teeth 
were extracted, including #3, #4, #19, #18, and #12.  The 
service dental records indicate that, for each of these 
teeth, the reason for extraction was non-restorable dental 
caries (NRC).  For example, a September 1970 entry regarding 
tooth #3 states that the tooth was extracted due to NRC with 
placement of two sutures.  Thus, the dental records disclose 
a reason other than trauma for the extraction of each tooth 
removed during the veteran's service.  This evidence 
conflicts with the veteran's testimony, was provided in the 
context to treatment at the time, and is entirely unfavorable 
to the claim that he sustained dental trauma in service.  See 
Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (the Board 
must consider the credibility and weight of a veteran's 
statements in determining whether to grant service connection 
based on continuity of symptomatology).

The service medical and dental records are also negative for 
complaints of or treatment for any dental trauma.  They 
contain no reference to the veteran having teeth removed due 
to being hit in the face, cheek or jaw, by a gun or any other 
mechanism, or to the veteran developing any sort of knot on 
his face, cheek, or jaw.  No history of trauma or knot is 
noted on the veteran's separation examination.  The Board 
notes that this absence of evidence constitutes negative 
evidence tending to disprove the claim that the veteran had a 
dental injury or disease in service which resulted in chronic 
disorder or persistent symptoms thereafter.  See Forshey v. 
West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. 
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the 
definition of evidence encompasses "negative evidence" which 
tends to disprove the existence of an alleged fact).  Any 
injury the veteran did experience in service was acute and 
transitory, as it did not lead to complaints or treatment 
during service or for many years after service.

There is limited medical evidence related to the veteran's 
teeth or dental treatment post-service.  Although the veteran 
sought service connection for dental trauma in May 1995, no 
evidence other then service medical records was received.  
The veteran did not identify a dental practitioner.  The RO 
determined that the claim for service connection for dental 
trauma was not well-grounded.

An April 1991 request for a dental consultation discloses 
that the veteran had dental caries.  The consultation request 
does not provide any indication of suspected prior dental 
trauma, infection, or bone loss.

In May 1991, the veteran's "loose teeth" were extracted 
without complication.  The report of the May 1991 dental 
examination discloses that the teeth remaining in the 
veteran's mouth at the time of separation, with the exception 
of #6, #11, #22, and #27, had all been extracted in the 
twenty years since the veteran's separation.  The record does 
not explain why or when the teeth in place at discharge were 
extracted prior to 1990.  An April 1991 dental consultation 
reveals that the veteran had extensive caries and advancing 
gum disease and had undergone full mouth extraction of all 
teeth except #6, #11, #22, and #27.  On further examination 
in July 1991, the veteran was found to have extensive caries 
of the remaining teeth and advancing gum disease.  The 
examination noted that the veteran had already undergone full 
mouth extraction of all teeth except #6, #11, #22, and #27.  
The notations showing that the veteran had extensive caries 
are entirely unfavorable to the veteran's claim that these 
teeth were damages as the result of trauma.

In May 1997, the veteran was seen for a cyst in the right 
cheek, which had developed two weeks prior.  Although the 
veteran may believe this cyst is actually a knot related to 
being hit in service, the approximately twenty-five years 
between the accident in service and the first medical 
evidence of a knot in the face or jaw suggests that any 
dental injury in service was acute and transitory.  See Barr, 
supra.  Furthermore, the veteran is not qualified to make a 
determination as to diagnosis and causation of the cyst.  
Jones v. Brown, 7 Vet. App. 134, 137 (1994), Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).

The veteran's service medical records clearly indicate that 
each tooth removed during service was removed as the result 
of NRC.  The service dental records and service medical 
records are entirely unfavorable to the veteran's contention 
that he incurred dental trauma in service.  Post-service 
medical and dental records, other than records submitted for 
the purposes of this claim, are entirely devoid of complaints 
or a history of dental trauma.  The post-service medical and 
dental records disclose no diagnosis other than gum disease, 
gingivitis, or other dental disease for which compensation is 
precluded under the governing regulations, and those in 
effect when this claim was submitted.  See 38 C.F.R. § 3.381, 
4.150.  The Board notes that section 3.38 was eliminated and 
section 4.150 was revised during the pendency of this claim.  
However, the revised regulations do not authorize 
compensation for the dental disorders at issue in this claim.

The preponderance of the evidence is against the veteran's 
claim for service connection for dental trauma for 
compensation purposes.  As the evidence is not in equipoise, 
the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable 
doubt are not applicable to warrant a more favorable result.  
Therefore, the claim for cannot be granted.

2.  Bone Loss and Infection 

Dental disabilities which may be awarded compensable 
disability ratings are now set forth under 38 C.F.R. 4.150.  
These disabilities include chronic osteomyelitis or 
osteoradionecrosis of the maxilla or mandible, loss of the 
mandible, nonunion or malunion of the mandible, limited 
temporomandibular motion, loss of the ramus, loss of the 
condyloid or coronoid processes, loss of the hard palate, 
loss of teeth due to the loss of substance of the body of the 
maxilla or mandible, if where the lost masticatory surface 
cannot be restored by suitable prosthesis, but only when the 
bone loss is a result of trauma or disease but not the result 
of periodontal disease.  38 C.F.R. § 4.150, DCs 9900-9916.

The record does not demonstrate that the veteran has a 
compensable dental disorder under 38 C.F.R. § 4.150.  Service 
medical records disclose that the veteran was missing some 
teeth at the time of entry into service in 1970.  During 
service, several teeth were extracted, including #3, #4, #19, 
#18, and #12.  The service dental records indicate that, for 
each of these teeth, the reason for extraction was non-
restorable dental caries.  Thus, the dental records disclose 
a reason other than trauma or disease for the extraction of 
each tooth removed during the veteran's service.  This 
evidence conflicts with the veteran's testimony and is 
entirely unfavorable to the claim that he sustained dental 
trauma in service.  See Barr, supra.  It is also evidence 
that the veteran did not experience bone loss, disease, or 
infection in service.  See Forshey, supra.

Furthermore, the first available dental record following 
treatment is from 1991, about twenty years after the veteran 
was discharged.  See Forshey, supra.  Post-service medical 
and dental records, other than records submitted for the 
purposes of this claim, are entirely devoid of complaints or 
a history of dental trauma or infection.  The available 
dental records do show that the veteran underwent root canals 
for periodontal disease, and the veteran may consider this an 
"infection" for which service connection can be granted.  
However, the regulations in effect when the veteran submitted 
this claim in 1998 specifically state that treatable carious 
teeth, replaceable missing teeth, dental or alveolar 
abscesses, and periodontal disease will be considered 
service-connected solely for the purpose of establishing 
eligibility for outpatient dental treatment, but not for 
purposes of compensation.  See 38 C.F.R. § 3.381 (1998).  The 
post-service medical and dental records disclose no diagnosis 
other than gum disease, gingivitis, or other dental disease 
for which compensation is allowed under the governing 
regulations, and those in effect when this claim was 
submitted.  See 38 C.F.R. § 3.381, 4.150.  The Board finds 
that any current bone loss or infection the veteran may have 
is not due to dental trauma or disease in service.

The preponderance of the evidence is against the veteran's 
claim for service connection for bone loss and infection of 
the mouth.  As the evidence is not in equipoise, the 
provisions of 38 U.S.C.A. § 5107(b) regarding reasonable 
doubt are not applicable to warrant a more favorable result.  
Therefore, the claim for cannot be granted.

3.  Hearing Loss

The first question in a service connection claim is whether 
there is a current disability.  In this regard, the Board 
notes that 38 C.F.R. § 3.385 defines when impaired hearing 
will be considered a "disability" for the purposes of 
applying the laws administered by VA.  That Code section 
states that hearing loss will be considered a disability when 
the auditory threshold in any of the frequencies 500, 1000, 
2000, 3000, or 4000 Hertz (HZ) is 40 decibels or greater; or 
when the auditory thresholds for at least 3 of the 
frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels 
or greater; or when speech recognition scores using the 
Maryland CNC Test are less than 94 percent.

In the present case, a VA examination in February 2006 showed 
pure tone thresholds, in decibels, as follows: 




HERTZ 



500 
1000 
2000 
3000
4000 
RIGHT 
25
10
15
25
25
LEFT 
20
30
25
25
25

The veteran's puretone threshold averages of 21 dB for the 
right ear and 26 dB for the left ear.  Speech recognition 
scores were 94 percent for the right ear and 96 percent for 
the left ear.  He was diagnosed with normal hearing at 250-
850 Hz bilaterally, with the exception of very mild 
sensorineural hearing loss at 1000 Hz at the left ear.  The 
average pure tone air threshold bilaterally were less than 40 
dB, and the speech recognition scores were not less than 94 
percent.  

A VA defines it, a current hearing loss disability would be 
shown if auditory thresholds for at least 3 of the 
frequencies 500, 1000, 2000, 3000 or 4000 Hz were 26 decibels 
or greater, but only one frequency (1000 Hz in the left ear) 
was above 25.  The current evidence does not demonstrate this 
level of disability; the veteran does not currently have a 
hearing loss disability of either ear, as defined for VA 
purposes.  

There is no medical evidence of bilateral hearing loss.  
Where the medical evidence establishes that a veteran does 
not currently have a disorder for which service connection is 
sought, service connection for that disorder is not 
authorized under the statues governing veterans' benefits.  
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), Rabideau 
v. Derwinski, 2 Vet. App. 141, 144 (1992).  As the veteran 
does not have a current disability, his claim for service 
connection for bilateral hearing loss is denied.

The preponderance of the evidence is against the veteran's 
claim for service connection.  Because the evidence is not in 
equipoise, the provisions of 38 U.S.C.A. § 5107(b) regarding 
reasonable doubt are not applicable to warrant a more 
favorable result.  Therefore, the claim for service 
connection for bilateral hearing loss cannot be granted.



	(CONTINUED ON NEXT PAGE)






ORDER

New and material evidence having been submitted, the claim 
for service connection for dental trauma is reopened.

The appeal for service connection for dental trauma for 
compensation purposes is denied.

The appeal for service connection for bone loss and infection 
of the mouth is denied.

The appeal for service connection for bilateral hearing loss 
is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs