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