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