Citation Nr: 0811919 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-17 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from June 1946 to January 1947, from June 1949 to June 1950, and from June 1951 to June 1952. He apparently was also a member of the Reserves and had unverified periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that, in part, denied the appellant's claim of entitlement to service connection for bilateral hearing loss. FINDINGS OF FACT 1. The appellant's service medical records contain no findings or diagnoses of any hearing loss nor was any such disorder demonstrated until many years after the appellant's separation from military service. 2. There is no competent medical evidence of any nexus between the appellant's current bilateral hearing loss and any aspect of his military service, including in the Reserves. CONCLUSION OF LAW The appellant does not have hearing loss in either ear that is the result of disease or injury incurred in or aggravated by active military service or any period of ACDUTRA or INACDUTRA. 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, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (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 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 necessary to substantiate his hearing loss service connection claim by correspondence dated in July 2004 (prior to the initial AOJ decision in this matter) and August 2005. These documents informed the appellant of VA's duty to assist and what kinds of evidence the RO would help obtain. In the July 2004 letter, the RO informed the appellant about what was needed to establish entitlement to service connection. The letter informed the appellant of what evidence was required to substantiate service connection claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was asked to submit evidence and/or information in his possession to the AOJ. Therefore, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed as to his five service connection claims. 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. 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 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. Therefore, there is no duty to assist or notify that is unmet. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which 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 did advise the appellant of such information concerning ratings and effective dates in correspondence dated in May 2006, because the appellant's 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). All relevant facts with respect to the hearing loss service connection claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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). 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 appellant prevails in either event. However, if the weight of the evidence is against the appellant'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 appellant maintains that his currently manifested bilateral hearing loss is related to his exposure to acoustic trauma while he was in service. He has stated that he was stationed on an airfield while on active duty and that he was thereby exposed to loud engine noise. He has also stated that he was exposed to various forms of weapons fire while in service, including while he participated in Marksmanship Matches. The appellant alleges that he was not provided hearing protection while in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. "The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 1110, 1131; see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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 appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there are required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic". Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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 determination of whether a veteran has a current 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 was incurred in or aggravated by service. The appellant submitted a VA Form 526 in February 1947; he did not report any problems with hearing loss. The appellant submitted a VA Form 8-526 in July 1952; again, he did not mention any hearing loss. The appellant did not submit a claim for hearing loss until July 2004 - many years after his separation from active service and Reserve service. The service medical records for each one of the appellant's three periods of active duty did not include any complaints of, diagnosis of, or treatment for hearing loss. The appellant underwent a separation examination in June 1952; his hearing was described as normal. Post-service, there is no clinical documentation of any problems with hearing loss until December 2000. At that time, the appellant underwent a private provider audiometric examination. His chief complaint was decreased hearing. He reported that he had had a recent left ear infection. The clinical impression was sensorineural hearing loss in each ear. Review of the appellant's VA outpatient treatment records reveals that the appellant reported having left ear hearing difficulties in February 2001. In June 2002, the appellant was described as hard of hearing. In April 2004, the appellant underwent VA fee-based audiometric testing. He reported no hearing loss in the right ear and hearing loss in the left ear of less than one year. There was a notation of a history of hearing loss in the appellant's family and of noise exposure. The findings revealed mild sensorineural hearing loss in each ear. The appellant underwent a VA audiometric examination in October 2005; the examiner reviewed the claims file. The appellant reported military noise exposure and he also reported recreational exposure (hunting). This examination also included audiometric testing. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 40 55 LEFT 35 40 40 55 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examiner opined that the appellant's hearing loss is not caused by or the result of acoustic trauma incurred during service. The examiner stated that the appellant's test results indicated a predominantly mild bilateral sensorineural hearing loss. The examiner further stated that clinical experience served as the basis for the attribution of the appellant's hearing loss to presbycusis (age-related hearing loss) rather than noise exposure. In fact, the appellant's current hearing capacity was described as very good for a man of his age. The examiner concluded that the hearing loss exhibited by the appellant was not the typical loss that one would see in someone 75 years old who had had noise exposure. The Board has considered the appellant's written statements, as well as those of his representative, submitted in support of his arguments that he has hearing loss as a result of his service. To the extent that the appellant's statements represent evidence of continuity of symptomatology, without more, his statements are not competent evidence of a diagnosis of hearing loss, nor do they establish a nexus between a medical condition and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as a diagnosis or opinion as to medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 495 (1992). While the appellant has shown exposure to acoustic trauma in- service, and the audiometric testing conducted by the VA, in October 2005, revealed that the appellant's bilateral hearing has met the requirements of 38 C.F.R. § 3.385, there is no competent clinical evidence of record to establish that the etiology of the appellant's hearing loss is in-service acoustic trauma. On the contrary, there is a competent medical opinion of record that attributes the appellant's current hearing loss, based on its particular parameters of loss, to presbycusis and not noise exposure. For the Board to conclude that the appellant's hearing loss is due to in- service noise exposure would be speculative, and the law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). In addition, the competent medical evidence of record does not indicate that the appellant's hearing loss was of a compensable degree within one year of his separation from active service so that service connection on a presumptive basis is also not supported by the evidence. The appellant's claim for service connection for bilateral hearing loss is not supported by the evidence and cannot be granted. The competent medical evidence of record including VA examination indicates that the appellant's current bilateral hearing loss is not etiologically attributed to service, whether active duty or Reserves. The appellant has not submitted any competent evidence that provides a nexus between any incident of his military service and his current bilateral hearing loss. In the absence of any evidence tending to show continuity of symptomatology which has been linked to military service or competent medical evidence supporting a nexus between the appellant's hearing loss and his military service, the claim for service connection for bilateral hearing loss cannot be granted. The Board finds that the preponderance of the evidence is against the appellant's claim for service connection for hearing loss. As the preponderance of the evidence is against the bilateral hearing loss service connection claim, the benefit-of-the-doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs