Citation Nr: 0811319 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-14 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active military service from June 1953 to June 1956, and from May 1958 to October 1958. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans (VA) Affairs Regional Office (RO) in Atlanta, Georgia in which the appellant's attempt to reopen his claim for service connection for left ear hearing loss was denied. After the appellant appealed that denial to the Board, the Board reopened the appellant's left ear hearing loss claim in a decision issued in August 2007. The Board also remanded the reopened claim for a de novo readjudication on the merits. The case has now been returned to the Board. The Board notes that the appellant initially requested a Board videoconference hearing in his April 2004 VA Form 9. The appellant was thereafter scheduled for a videoconference hearing in February 2005. However, in a written statement submitted in January 2005, the appellant withdrew his request for a Board hearing. As no outstanding hearing request exists, the case is now ready for appellate review. In the decision below, the Board denies the claim for service connection for left ear hearing loss. However, the Board notes that, as of August 9, 2004, in cases where service connection is in effect only for one ear, VA may nevertheless pay compensation as if hearing loss in both ears was service connected provided that there is "[h]earing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear." 69 Fed Reg. 48148 (Aug. 9, 2004). The appellant underwent VA audiometric testing in March 2004; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 50 60 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of zero percent in the right ear and 30 percent in the left ear. Thus, the veteran in this case, as of March 2004, did meet the requirements of 38 C.F.R. § § 3.385 for his left ear. The appellant underwent a VA audiometric examination in November 2007; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ *105+ 105+ 105+ 105+ LEFT 50 55 85 95 105+ Speech audiometry revealed speech recognition ability of zero percent in the right ear and 28 percent in the left ear. Again, the veteran in this case currently does meet the criteria of 38 C.F.R. § 3.385 for his left ear. (*Note typographical error of 10 in the report.) As the appellant has demonstrated hearing impairment in the right ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the left ear, the matter is REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. Service medical records contain no findings or diagnoses of any left ear hearing loss. 2. Left ear hearing loss was not clinically demonstrated until many years after the appellant's separation from active duty in October 1958. 3. There is no competent medical evidence of any nexus between the appellant's current left ear hearing loss and his active service. CONCLUSION OF LAW The appellant does not have any left ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty 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 claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 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 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). The appellant was notified of the information to substantiate his left ear hearing loss service connection claim in a VA letters issued in January 2003, July 2003, and August 2007. These documents informed the appellant of VA's duty to assist and what kinds of evidence the RO would help obtain. In the letters, VA informed the appellant about what was needed to establish entitlement to service connection. The letters informed the appellant of what evidence was required to substantiate his service connection claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was implicitly asked to submit evidence and/or information in his possession to the AOJ in these letters. The Board notes that the August 2007 letter was sent after both the September 2003 AOJ denial and the August 2007 Board reopening of the claim with remand for readjudication. The case was subsequently readjudicated as evidenced by the December 2007 Supplemental Statement of the Case (SSOC). 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). Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed as to his left ear hearing loss service connection claim. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d). Here, VA reviewed the appellant's service medical records. VA and private medical records were associated with the claims file and reviewed. The appellant was afforded a VA audiometric examination. The appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. The appellant was given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the 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 include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although the RO never the appellant of such information concerning ratings and effective dates, because the appellant's left ear haring loss service connection claim is being denied, the questions of an appropriately assigned evaluation and the effective date for a grant of service connection are not relevant. Proceeding with this case in its current procedural posture would not therefore inure to the appellant's prejudice. The appellant was provided with notice as to the medical evidence needed for service connecting a disability, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant 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). The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Court explained that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, at 157. The Court further opined that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Hensley at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss is related to disease or injury that was incurred in or aggravated by service. The appellant contends that he has diminished hearing capability in his left ear that was caused by the same forces that were responsible for his right ear hearing loss that is service-connected. His representative argues that the appellant's exposure to artillery fire in service is the etiologic cause of the left ear hearing loss. Review of the appellant's service medical records reveals that he was treated in-service for problems with his right ear; however, he was not treated for his left ear. The June 1956 separation examination report indicates that the appellant's left ear hearing was within normal limits in that his left ear hearing was 15/15 whispered voice. The appellant underwent an audiometric examination in October 1958; the puretone threshold results for the left ear, in decibels and converted from ASA units to ISO (ANSI) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X X X X X LEFT 25 20 20 N/A 15 These results do not meet the criteria listed in 38 C.F.R. § 3.385. The first clinical evidence of record that documents the appellant's loss of left ear hearing is found in the February 1983 report from a private doctor who indicated that the appellant had some high frequency sensorineural hearing loss in the left ear. The doctor further stated that the appellant had a speech reception threshold of 35 decibels in the left ear, as well as a speech discrimination score of 50 percent. However, that report did not contain any opinion as to the etiology or onset date of the appellant's current left ear hearing loss. The appellant most recently underwent a VA audiometric examination in November 2007; the examiner reviewed the claims file. After reviewing the claims file and examining the appellant, the VA audiologist noted that there was no documentation of left ear hearing loss at the time of the appellant's service separation in October 1958, or within one year of hat time. The audiologist concluded that it was less likely than likely that the appellant's hearing loss in the left ear occurred due to his military service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). There must be medical evidence of a nexus relating an in-service event, disease or injury, and any current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993); 38 C.F.R. § 3.303. To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the veteran's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The appellant contends that he now suffers from hearing loss in his left ear that is etiologically due to service. Viewing the evidence in a light most favorable to the veteran, the evidence of record indicates that he demonstrated some right ear hearing loss in-service; however, he was not treated for any left ear condition. There is no medical evidence of record to establish that the appellant experienced any residual in the left ear from the right ear condition associated with a cold in June 1958, or that he was ever treated for, or diagnosed with, any left ear hearing loss in service. There is no evidence of record that the appellant had left ear hearing loss to a compensable degree within one year of his separation from service. The left ear hearing loss was not clinically demonstrated in the evidence of record until 1983. The first documentation of any left ear hearing loss, therefore, occurs almost twenty-five years after the appellant's separation from service. In order for service connection to be warranted, there must be evidence of a present disability that is attributable to a disease or injury incurred during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Because the totality of the medical and nonmedical evidence of record shows that the appellant's currently demonstrated left ear hearing loss cannot be said to be related to service by way of direct incurrence or by manifestation within the presumptive period, the Board concludes that the claim for entitlement to service connection for left ear hearing loss must be denied. The Board also notes that the evidence of record is not in equipoise on the question of whether the appellant's left ear hearing loss should be service connected. There is no medical evidence of record to establish that the appellant complained of, or was treated for, any left ear hearing loss while he was on active duty. There is no medical evidence of record to demonstrate that the appellant experienced any left ear hearing loss as a result of the any right ear disorder. There is no evidence of record that the appellant exhibited any left ear hearing loss to a compensable degree within one year of his separation from service in October 1958. While right ear hearing loss was demonstrated in service, the absence of any evidence of the claimed left ear hearing loss in the service medical records or of persistent symptoms of left ear hearing loss between 1958 and 1983 constitutes negative evidence tending to disprove the assertion that the appellant incurred any left ear hearing loss during his service. 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) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). The lack of any evidence of left ear hearing loss until many years after the appellant's 1958 separation from service is itself evidence which tends to show that no left ear hearing loss was incurred in service. In Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit affirmed a decision by the Court which held that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. The trier of fact should consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts. See Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability). Although Maxson is not directly on point in this case, as it deals with aggravation in service and not service connection, it does imply that, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. In addition, the "absence" of evidence or "negative" evidence of the claimed condition during service is supported by affirmative evidence that tends to show that the claimed disorder was not incurred during that time. Such affirmative evidence consists of the June 1956 and October 1958 separation examination reports that indicate that the appellant's left ear hearing was normal at those times. The finding of "normal" on said clinical evaluations is medical evidence indicating that the claimed left ear hearing loss was not present on examination in June 1956, or in October 1958. Thus, this is positive evidence that the appellant was not experiencing left ear hearing loss during active duty. Furthermore, in his claim for VA benefits submitted in September 1969, the appellant only claimed right ear hearing loss and did not mention any problems with the left ear. In addition, the clinical opinion of record on the question of etiology and onset date does not relate the appellant's left ear hearing loss to his active military service. The appellant contends that his left ear hearing loss is due to service. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Further, the Court has held that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, the Board must assess the appellant's competence to report sustaining left ear hearing loss that is etiologically due to his military service, as well as his credibility. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr and Washington, the Court noted that a veteran is competent to testify to factual matters of which he had first-hand knowledge, and citing its earlier decision in Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), held that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the personal knowledge of the witness; see also 38 C.F.R. § 3.159(a)(2). In this capacity, the Board notes that the appellant is competent to say that he experienced hearing problems in his left ear while in service, he does not have the expertise to state that he met the requirements of 38 C.F.R. § 3.385 prior to 1983; audiometric testing would be required. Written statements of the appellant to the effect that his left ear hearing loss is causally connected to his active service are not probative as there is no evidence in the record that he has any medical knowledge or expertise to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). After consideration of the entire record and the relevant law, the Board finds that the appellant's left ear hearing loss is not related to his active service. While it is apparent that the appellant does currently experience left ear hearing loss, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of that condition and service. Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for left ear hearing loss. As such, the evidence is insufficient to support a grant of service connection for that disorder. For the above reasons, the Board finds that the preponderance of the evidence is against the appellant's claim. Because the preponderance of the evidence is against the left ear hearing loss service connection claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.). ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs