Citation Nr: 0812086 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-30 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from December 2003 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Fargo, North Dakota. FINDING OF FACT The veteran does not currently have hearing loss, as defined by VA, in the right ear. CONCLUSION OF LAW Right ear hearing loss was not incurred as a result of the veteran's active service. 38 C.F.R. § 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION For 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, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The audiometric examination reports contained in the veteran's service treatment records fail to show that the veteran ever had an auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz of 40 decibels or greater in the right ear. These records also do not show that the veteran had right ear auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz at 26 decibels or greater. The veteran was provided an audiology examination just prior to discharge in February 2005. The examination report reveals that the veteran had auditory thresholds of 10, 15, 10, 20, and 25 decibels in the right ear, at 500, 1,000, 2,000, 3000, and 4,000 Hertz, respectively. A private audiometric report dated April 7, 2005 from the Center for Hearing and Speech indicates that the veteran had auditory thresholds of 25, 15, 15, 20, and 20 decibels in the right ear, at 500, 1,000, 2,000, 3000, and 4,000 Hertz, respectively. The veteran was provided a VA audiology examination on April 20, 2005. The examination report reveals that the veteran had auditory thresholds of 0, 5, 5, 10, and 20 decibels in the right ear, at 500, 1,000, 2,000, 3000, and 4,000 Hertz, respectively. The report indicates that the veteran had 98 percent speech recognition in right ear. In this case, the veteran does not have right ear hearing loss as defined by VA. None of the audiometric examinations have revealed the veteran to exhibit three auditory thresholds of 26 decibels or greater at the frequencies 500, 1,000, 2,000, 3,000, and 4,000 hertz. The veteran did not have an auditory threshold of 40 decibels or higher at any of those frequencies. Furthermore, the veteran's speech recognition score was above 94 percent in the right ear when this was tested by VA in April 2005. 38 C.F.R. § 3.385. In the absence of current demonstration of a right ear hearing loss disability as defined by VA, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the veteran's representative requested in March 2008 that the veteran be provided a new VA audiological examination, there is no indication in the record that the veteran's right ear hearing acuity has increased in severity since the audiological examinations described above. Accordingly, a new VA audiological examination is not indicated. Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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 or her 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) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b)(2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2005, prior to adjudication of the veteran's claim by the RO, VA informed the veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA informed the claimant of the need to submit all pertinent evidence in his possession. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. With respect to VA's duty to assist the appellant, the RO has obtained the veteran's service medical records and the veteran has been afforded a VA audiological examination. The veteran has submitted private medical evidence in support of his claim. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. There is no indication that there exists any additional evidence which has a bearing on the veteran's claim which has not been obtained. The Board acknowledges that the veteran was not provided notice of the appropriate disability rating and effective date of any grant of service connection. However, as service connection has been denied, no disability ratings or effective dates will be assigned and any failure to provide notice of such factors is not prejudicial to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs