Citation Nr: 0810954	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  05-23 346	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. M. Schaefer, Associate Counsel


INTRODUCTION

The veteran served on active duty from October 1953 to 
October 1957.

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


FINDINGS OF FACT

1.  VA notified the veteran of the evidence needed to 
substantiate the claim decided herein, explained to him who 
was responsible for submitting such evidence, and developed 
all available evidence necessary for an equitable disposition 
of the claim. 

2.  Bilateral hearing loss was not present in service, 
manifested within one year of the veteran's discharge from 
service, or shown to be causally or etiologically related to 
any disease, injury, or incident in service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by 
the veteran's active duty military service, nor may it be 
presumed to have been incurred in or aggravated by such 
service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 
(codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 
2002 & Supp. 2007)), eliminated the concept of a well-
grounded claim and redefined VA's obligations with respect to 
its duties to notify and assist a claimant.  In August 2001, 
VA issued regulations to implement the VCAA.  66 Fed. Reg. 
45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2007)).

The Court of Appeals for Veterans Claims' (Court) decision in 
Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in 
part, that a VCAA notice, as required by 38 U.S.C.A. § 
5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
the claims for VA benefits.  In this case, the veteran was 
provided with VCAA notification letters in September 2003 and 
November 2003, prior to the initial unfavorable AOJ decision 
issued in April 2004.  

Under Pelegrini, for a VCAA notice to be consistent with 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: 
(1) inform a claimant about the information and evidence not 
of record that is necessary to substantiate the claims; (2) 
inform the claimant about the information and evidence that 
VA will seek to provide; (3) inform the claimant about the 
information and evidence that the claimant is expected to 
provide; and (4) request or tell the claimant to provide any 
evidence in the claimant's possession that pertains to the 
claims.  Pelegrini, 18 Vet. App. at 120-121. 

In reviewing the veteran's claim of entitlement to service 
connection, the Board observes that the VCAA notices issued 
in September 2003 and November 2003 informed the veteran of 
how VA would assist him in developing his claim and his and 
VA's obligations in providing evidence for consideration.  
The September 2003 letter also informed him of the type of 
evidence necessary to establish service connection.  However, 
neither letter requested that he send any evidence in his 
possession to VA.  

Failure to provide pre-adjudicative notice of any of the four 
elements is presumed to create prejudicial error.  See 
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Simmons 
v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007).  The Secretary 
has the burden to show that this error was not prejudicial to 
the veteran.  Lack of prejudicial harm may be shown in three 
ways: (1) that any defect was cured by actual knowledge on 
the part of the claimant, (2) that a reasonable person could 
be expected to understand from the notice what was needed, or 
(3) that a benefit could not have been awarded as a matter of 
law.  Sanders; see also Mayfield v. Nicholson, 19 Vet. App. 
103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006).  The September 2003 and 
November 2003 letters informed him that additional 
information or evidence was needed to support his claim, and 
asked him to send the information or evidence to VA and 
provided examples of the types of evidence, both medical and 
lay, that could be submitted.  Therefore, the Board finds 
that a reasonable person could be expected to understand that 
he should submit any relevant evidence during the development 
of the claim.  For these reasons, the Board concludes that 
the failure to provide a fully VCAA compliant notice was 
harmless, and that to decide the appeal would not be 
prejudicial to the veteran.

Also pertinent to VA notice requirements is the Court's 
decision in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held that 
the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) apply to all five elements of a service 
connection claim.  Those five elements 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.  The 
Court held that upon receipt of an application for a service 
connection claim, 38 U.S.C.A. § 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 claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  Additionally, 
this notice must notify the veteran that a disability rating 
and an effective date for the award of benefits will be 
assigned if service connection is awarded.  Id.

In the present case, a May 2006 letter informed the veteran 
of the evidence necessary to establish entitlement to a 
disability rating and effective date for the disability on 
appeal.  Despite the inadequate timing of the notice provided 
to the veteran on these two elements, the Board finds no 
prejudice to him in proceeding with the issuance of a final 
decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) 
(where the Board addresses a question that has not been 
addressed by the agency of original jurisdiction, the Board 
must consider whether the veteran has been prejudiced 
thereby).  As the Board concludes herein that the 
preponderance of the evidence is against the veteran's 
service connection claim, any questions as to the appropriate 
disability rating or effective date to be assigned are 
rendered moot.  

All that VCAA requires is that the duty to notify is 
satisfied and that claimants are given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished all due process concerns have 
been satisfied.  See Bernard; Sutton v. Brown, 9 Vet. App. 
553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  
As indicated above, all content requirements of a VCAA notice 
have been fully satisfied in this case.  Therefore, the Board 
finds that delaying appellate review by providing additional 
VCAA letters to the veteran would be of no benefit. 

VA has also fulfilled its duty to assist the veteran in 
making reasonable efforts to identify and obtain relevant 
records in support of the veteran's claim and providing him 
with a VA examination.  The veteran's service medical 
records, VA medical records, and a December 2003 VA 
examination report were reviewed by both the RO and the Board 
in connection with adjudication of his claim.  The veteran 
indicated that he had his hearing tested once, but could not 
remember when or where.  As the Court stated in Wood v. 
Derwinski, "[t]he duty to assist is not always a one-way 
street.  If a veteran wishes help, he cannot passively wait 
for it in those circumstances where he may or should have 
information that is essential in obtaining the putative 
evidence."  1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 
406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 
(1996).  Therefore, in the present case, the Board determines 
that VA is neither able to obtain the records related to this 
hearing test nor obligated to attempt to obtain them.  The 
veteran has not identified any additional, relevant records 
that VA needs to obtain for an equitable disposition of his 
claim. 

Based on these facts, the Board concludes that the medical 
evidence of record is sufficient to adjudicate the veteran's 
claim without further development.  Thus, the Board finds 
that additional efforts to assist or notify the veteran in 
accordance with VCAA would serve no useful purpose.  See 
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict 
adherence to requirements of the law does not dictate an 
unquestioning, blind adherence in the face of overwhelming 
evidence in support of the result in a particular case; such 
adherence would result in unnecessarily imposing additional 
burdens on VA with no benefit flowing to the veteran); 
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which 
would only result in unnecessarily imposing additional 
burdens on VA with no benefit flowing to the veteran are to 
be avoided).  VA has satisfied its duty to inform and assist 
the veteran at every stage in this case.  Therefore, he will 
not be prejudiced by the Board proceeding to the merits of 
the claim.

II. Analysis

Service connection may be granted for disability arising from 
disease or injury incurred in or aggravated by service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  
Connecting the disability to service may be accomplished 
through statutory presumption or through affirmative evidence 
that shows inception or aggravation during service or that 
otherwise indicates a direct relationship between service and 
the current disability.  38 C.F.R. §§ 3.303(a), (d).    

The statutory presumptions and VA regulations implementing 
them are intended to allow service connection for certain 
diseases when the evidence might otherwise not indicate 
service connection is warranted.  See 38 C.F.R. § 3.303(d).  
Where a veteran served for at least 90 days during a period 
of war or after December 31, 1946, and manifests certain 
chronic diseases, including organic diseases of the nervous 
system, to a degree of 10 percent within one year from the 
date of termination of such service, such disease shall be 
presumed to have been incurred or aggravated in service, even 
though there is no evidence of such disease during the period 
of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 
3.309.  In an October 4, 1995 opinion, VA's Under Secretary 
for Health determined that it was appropriate to consider 
high frequency sensorineural hearing loss an organic disease 
of the nervous system and therefore a presumptive disability.  

However, presumptive periods are not intended to limit 
service connection to diseases so diagnosed when the evidence 
warrants direct service connection.  38 C.F.R. § 3.303(d).  
Direct service connection may be granted for disease or 
disability diagnosed in service; or, if diagnosed after 
service, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  Id.    

A finding of direct service connection requires medical 
evidence of a current disability; medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between the claimed in-service disease or injury and 
the present disease or injury.   38 U.S.C.A. § 1112; 38 
C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 
506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)].

Alternatively, service connection may be established under 38 
C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a 
chronic disease in service or during an applicable 
presumption period under 38 C.F.R. § 3.307 and (ii) present 
manifestations of the same chronic disease, or (b) when a 
chronic disease is not present during service, evidence of 
continuity of symptomatology. 

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.

The Court has held that service connection may be granted for 
a hearing loss where the veteran can establish a nexus 
between his current hearing loss and a disability or injury 
he suffered while he was in military service.  Godfrey v. 
Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also 
held that VA regulations do not preclude service connection 
for a hearing loss that first met VA's definition of 
disability after service.  Hensley v. Brown, 5 Vet. App. 155, 
159 (1993).

The veteran contends that his current bilateral hearing loss 
is the result of noise exposure while working on airplane 
propellers and engines in service.  Thus, he claims that 
service connection is warranted for his bilateral hearing 
loss.

The Board observes that the veteran has reported acoustic 
trauma in the military while serving as an aircraft propeller 
mechanic.  Although the veteran's service medical records do 
not contain any documentation as to noise exposure, the 
veteran is competent to describe the nature and extent of his 
in-service noise exposure and such is consistent with his 
military occupational specialty as a aircraft propeller 
mechanic, as noted in his service records.  See 38 C.F.R. § 
3.159(a)(2); Espiritu v. Derwinski, 2 Vet. App. 492 (1992).   

The veteran's service medical records are negative for 
complaints, treatment, or diagnosis pertinent to hearing 
difficulty, to include his enlistment and service separation 
examinations.  However, post-service medical evidence shows a 
diagnosis of bilateral hearing loss.

At the December 2003 VA audiological evaluation, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
15
45
55
LEFT
45
20
15
40
45

Speech audiometry revealed speech recognition ability of 100	 
percent in the right ear and of 96 in the left ear.  The 
veteran was diagnosed with mild to moderately severe 
sensorineural hearing loss with good speech recognition 
bilaterally.  Therefore, the Board finds that the 
contemporary medical evidence demonstrates a current 
bilateral hearing loss as defined by 38 C.F.R. § 3.385.  

The Board has considered all relevant evidence of record 
regarding the veteran's claims for service connection for 
bilateral hearing loss.  The Board first considered whether 
service connection is warranted for bilateral hearing loss on 
a presumptive basis.  However, the record fails to show that 
the veteran manifested hearing loss to a degree of 10 percent 
within one year following his service discharge in October 
1957.  Consequently, presumptive service connection is not 
warranted for bilateral hearing loss.  38 U.S.C.A. §§ 1101, 
1112; 38 C.F.R. §§ 3.307, 3.309. 

The Board next considered whether service connection is 
warranted for bilateral hearing loss on a direct basis.  
However, while the veteran has a current diagnosis of 
bilateral hearing loss and is competent to describe his in-
service noise exposure, the record shows no complaint or 
diagnosis of the disorder during active service or for many 
years thereafter.  The first complaint of hearing loss by the 
veteran was his September 2003 application for service 
connection.  Moreover, the first documented post-service 
hearing test and clinical diagnosis of hearing loss for VA 
purposes is the December 2003 VA examination.  The lapse in 
time between service and the first complaints and diagnoses 
weighs against the veteran's claims.  The Board may, and 
will, consider in its assessment of a service connection the 
passage of a lengthy period of time wherein the veteran has 
not complained of the malady at issue.  See Maxson v. West, 
12 Vet. App. 453, 459 (1999), aff'd sub nom.  Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey 
v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). 

At the March 2004 VA examination, the VA examiner noted not 
only that the veteran's audiogram was normal at his service 
separation examination, but also that there is no other 
documentation of hearing loss in the file.  As a result, the 
VA examiner determined that it is not as likely as not that 
the veteran's hearing loss is a consequence of acoustic 
trauma while in service.  
As the March 2004 VA examiner's opinion is the only medical 
opinion of record, the Board finds that there is no competent 
medical opinion attributing the onset of the veteran's 
bilateral hearing loss to his service.  Thus, the veteran's 
claim that his bilateral hearing loss is the result of his 
military service is supported solely by his own statements.  
Consequently, the evidence of a nexus or link between service 
and the veteran's bilateral hearing loss is limited to his 
own statements.  Laypersons are competent to speak to 
symptomology when the symptoms are readily observable.  Layno 
v. Brown, 6 Vet. App. 465, 469 (1994).  However, only those 
with specialized medical knowledge, training, or experience 
are competent to provide evidence on the question of 
diagnosis and causation.  See Jones v. Brown, 7 Vet. App. 
134, 137 (1994); Espiritu.  In the absence of any competent 
evidence connecting the disorder to the veteran's time in 
service, the Board concludes that service connection for 
bilateral hearing loss is not warranted.  

When there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  However, in 
the present case, the preponderance of the evidence is 
against the veteran's claim of entitlement to service 
connection for bilateral hearing loss.  Therefore, his claim 
must be denied.


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs