Citation Nr: 0810892 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 03-32 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hearing loss in the right ear. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from April 1970 to May 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Regional Office (RO) that denied service connection for bilateral hearing loss. In an April 2006 decision, the Board remanded the issue to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. By an August 2007 rating decision, the AMC granted the veteran's claim for service connection for hearing loss in the left ear and resolved that issue in full. The issue of service connection for hearing loss in the right ear remains on appeal. FINDINGS OF FACT The competent medical evidence of record does not reflect that the veteran has a current hearing loss disability in the right ear. CONCLUSION OF LAW Hearing loss in the right ear was not incurred in or aggravated by service, nor may an in-service occurrence of sensorineural hearing loss be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in December 2002 and May 2006 letters, issued prior to the decision on appeal, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need to advise VA of evidence he wished VA to obtain, or to submit any additional evidence that pertains to the claim. The veteran was advised about how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations in the May 2006, November 2006 and June 2007 letters. This case was last readjudicated in August 2007. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes the service treatment records, service personnel records, private medical records, VA outpatient records, a VA examination report and a transcript from a hearing before the Board. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Moreover, as the Board concludes below that the preponderance of the evidence is against service connection for hearing loss in the right ear, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2007). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. The veteran contends he currently suffers from hearing loss in the right ear which is related to his time in service when he was a mortarman. In a hearing before the Board in March 2005, the veteran stated that his hearing had progressively worsened as a result of noise exposure during service. He testified that he was a mortarman in service and his military occupational specialty was light artillery entail which included firing continual rounds of mortars and artillery on both his left and his right side. He further testified that he did not wear ear protection when firing. The veteran's discharge certificate confirms that his military occupational specialty was as a mortarman and his service personnel records confirm that his primary duty included rifle man and ammo man. Service treatment records are absent of any complaints of hearing loss. An audiogram recorded upon entry into service reflects the veteran's hearing was within normal limits in both ears. Upon separation, the veteran was not given an audiology exam. However, a whisper voice test on the separation examination reflects the veteran's left and right ears were scored as 15 out of 15. The record reflects that shortly after discharge from service, the veteran was given an audiology examination on June 13, 1973, pursuant to an employment physical examination. The audiogram shows that the hearing threshold levels in the right ear were all less than 20 decibels. Audiometric testing in October 1991 revealed that the hearing threshold levels in decibels in the right ear were 5 decibels or less at 500, 1000, 2000, 3000 and 4000 Hertz. Audiometric testing in June 1992 revealed that the hearing threshold levels in decibels in the right ear were 0, 5, 0, 5 and 10 at 500, 1000, 2000, 3000 and 4000 Hertz respectively. Speech recognition scores were not recorded for either test. VA outpatient reports note that in September 2005 the veteran was referred for an audiology consult. A summary of audiometric testing reported normal hearing from 250 to 4000 Hertz sloping to a mild to moderate hearing loss from 6000 to 8000 Hertz in the right ear. The examiner noted the speech recognition thresholds were in close agreement with pure tone averages. The examiner also noted that with using recorded speech, speech discrimination ability was excellent in the right ear. Audiometric testing on the VA examination in July 2007 revealed that the hearing threshold levels in decibels in the right ear were 5, 5, 10, 10 and 25 at 500, 1000, 2000, 3000 and 4000 Hertz respectively. Maryland CNC speech recognition score was 96 percent in the right ear. The examiner concluded that the results for the right ear were within normal limits in the region of 500 to 4000 Hertz and did not meet the requirements for a hearing loss disability under VA regulations. Though the veteran's right ear threshold was 25 decibels at 4000 Hertz, which may be considered as some degree of hearing loss, his hearing loss is not considered a hearing loss disability for VA purposes, as specified under 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The competent medical evidence of record does not reflect that a current disability in the right ear exists within the meaning of 38 C.F.R. § 3.385. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. By regulation, the veteran does not suffer from a hearing loss disability in the right ear. Thus, the claim for service connection for hearing loss in the right ear must be denied. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hearing loss in the right ear is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs