Citation Nr: 0812126	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  07-00 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, 
Maine


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel




INTRODUCTION

The veteran served on active duty from October 1966 to 
September 1968.  The veteran also served in the Army National 
Guard from November 1970 to November 1973 and from January 
1979 to January 1982.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a February 2006 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Togus, Maine, which denied entitlement to service 
connection for bilateral hearing loss and tinnitus. 

The RO awarded service connection for tinnitus in an October 
2006 rating decision.  As such, the matter is no longer in 
appellate status.

The veteran presented testimony before the Board in August 
2007.  The transcript of that hearing has been associated 
with the claims folder. 


FINDINGS OF FACT

1.  The veteran has been apprised of what evidence would 
substantiate the claim for benefits and the allocation of 
responsibility for obtaining such evidence; and all relevant 
medical and lay evidence obtainable and necessary to render a 
decision in this matter has been received.

2.  The currently demonstrated bilateral hearing loss is not 
shown to be due any event or incident of the veteran's active 
service or any period of active duty or inactive duty for 
training, nor is it shown to have manifested within the year 
following separation from active duty service.




CONCLUSION OF LAW

The criteria for the establishment of service connection for 
bilateral hearing loss are not met.  38 U.S.C.A. §§ 101(2), 
(22), (24), 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. 
§§ 3.1, 3.102, 3.303, 3.307, 3.309, 3.385 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties To Notify And Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002) redefined VA's duty to assist the veteran in the 
development of a claim.  VA regulations for the 
implementation of the VCAA were codified as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006).

The notice requirements of the VCAA require VA to notify the 
veteran of what information or evidence is necessary to 
substantiate the claim; what subset of the necessary 
information or evidence, if any, the claimant is to provide; 
what subset of the necessary information or evidence, if any, 
the VA will attempt to obtain; and a general notification 
that the claimant may submit any other evidence he has in his 
possession that may be relevant to the claim.  Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  The requirements 
apply to all five elements of a service connection claim: 
veteran status, existence of a disability, a connection 
between the veteran's service and the disability, degree of 
disability, and effective date of the disability.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Such notice must be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits by the agency 
of original jurisdiction (in this case, the RO).  Id; see 
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  
However, insufficiency in the timing or content of VCAA 
notice is harmless if the errors are not prejudicial to the 
claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 
2004) (VCAA notice errors are reviewed under a prejudicial 
error rule); see also Sanders, supra.	

In this case, in a November 2005 letter, issued prior to the 
decision on appeal, the RO provided notice to the veteran 
regarding what information and evidence was needed to 
substantiate the claim, as well as what information and 
evidence must be submitted by the veteran, what information 
and evidence will be obtained by VA, and the need for the 
veteran to advise VA of or submit any further evidence in his 
possession that pertained to the claim.  

The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
veteran.  Specifically, the information and evidence that 
have been associated with the claims file includes the 
veteran's active duty and reserve service medical and 
personnel records, post-service private treatment records, VA 
examination reports, an article concerning Operation Allen 
Brook, and declassified military reports.  

A request for Army National Guard records from the National 
Personnel Records Center (NPRC) resulted in a negative 
response in June 2006.  Medical and personnel records were 
received from the Military Bureau of the Army National Guard 
in Augusta, Maine, in May 2006.  There is no indication that 
there are any outstanding Reserve records.  Any further 
efforts to obtain any additional Reserve records would be 
futile.  38 C.F.R. § 3.159(c)(2).

As discussed above, the VCAA provisions have been considered 
and complied with.  The veteran was notified and aware of the 
evidence needed to substantiate this claim, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  

There is no indication that there is additional evidence to 
obtain, there is no additional notice that should be 
provided, and there has been a complete review of all the 
evidence without prejudice to the veteran.  As such, there is 
no indication that there is any prejudice to the veteran by 
the order of the events in this case.  See Pelegrini, supra; 
Bernard v. Brown, 4 Vet. App. 384 (1993).  

Moreover, as the Board concludes below that the preponderance 
of the evidence is against the veteran's claim, any question 
as to an appropriate evaluation or effective date to be 
assigned is rendered moot.  Any error in the sequence of 
events or content of the notice is not shown to have affected 
the essential fairness of the adjudication or to cause injury 
to the claimant.  See Sanders, supra.  Thus, any such error 
is harmless and does not prohibit consideration of this 
matter on the merits.  See Conway, supra; Dingess, supra; see 
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998).

Analysis

The Board has reviewed all the evidence in the veteran's 
claims file, which includes: his multiple contentions; the 
veteran's active duty and reserve service medical and 
personnel records; post-service private treatment records; VA 
examination reports; an article concerning Operation Allen 
Brook; and declassified military reports.  Although the Board 
has an obligation to provide adequate reasons and bases 
supporting this decision, there is no requirement that the 
evidence submitted by the veteran or obtained on his behalf 
be discussed in detail.  Rather, the Board's analysis below 
will focus specifically on what evidence is needed to 
substantiate each claim and what the evidence in the claims 
file shows, or fails to show, with respect to each claim.  
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The veteran contends that he is entitled to service 
connection for bilateral hearing loss.  Specifically, he 
contends that bilateral hearing loss is the result of 
acoustic trauma sustained during his Vietnam service from 
small arms fire and 500 pound bombs dropped by F-4 Phantoms 
during Operation Allen Brook.  He alternatively contends that 
hearing loss is the result of noise exposure from 155 
howitzers at annual training during his Reserve periods of 
service.

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Evidence of continuity of symptomatology from the time of 
service until the present is required where the chronicity of 
a condition manifested during service either has not been 
established or might reasonably be questioned.  38 C.F.R. § 
3.303(b).  Regulations also provide that service connection 
may be granted for any disease diagnosed after discharge, 
when all the evidence, including that pertinent to service, 
establishes that the disability was incurred in service.  
38 C.F.R. § 3.303(d).

Moreover, where a veteran served continuously for ninety (90) 
days or more during a period of war, or during peacetime 
service after December 31, 1946, and sensorineural hearing 
loss becomes manifest to a degree of at least 10 percent 
within one year from date of termination of such service, 
such disease shall be presumed to have been incurred in 
service, even though there is no evidence of such disease 
during the period of service.  This presumption is rebuttable 
by affirmative evidence to the contrary.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 
3.309 (2007).  

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 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) (West 2002); 38 C.F.R. § 3.6(a), (d) (2007).   
Certain presumptions, such as the above-mentioned presumption 
relating to certain diseases and disabilities (38 U.S.C.A. 
§ 1101, 1112; 38 C.F.R. § 3.307, 3.309), the presumption of 
soundness 
(38 U.S.C.A. § 1111; 38 C.F.R. § 3.304) and the presumption 
of aggravation 
(38 U.S.C.A. § 1153; 38 C.F.R. § 3.306), apply only to 
periods of active military service.  See Paulson v. Brown, 7 
Vet. App. 466, 470.

Thus, the definitional statute, 38 U.S.C.A. § 101(22), (24) 
makes a clear distinction between those who have served on 
active duty and those who have served on active duty or 
inactive duty for training. 

In order to prevail on the issue of service connection there 
must be medical evidence of a current disability; medical 
evidence, or in certain circumstances, lay evidence of in- 
service occurrence or aggravation of a disease or injury; and 
medical evidence of a nexus between an in-service injury or 
disease and the current disability.  See Hickson v. West, 12 
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 
341, 346 (1999).

Pursuant to 38 C.F.R. § 3.385, impaired hearing will be 
considered to be a disability when the auditory threshold in 
any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 
40 decibels or greater, or when at least three of the 
frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels 
or greater, or when speech recognition scores using the 
Maryland CNC Test are less than 94 percent.  

At the outset, the Board notes the veteran had active 
military service from October 1966 to September 1968.  Thus, 
the Board shall first address whether bilateral hearing loss 
is related to the veteran's active military service.  

After careful consideration of all procurable and assembled 
data, while the Board does not dispute the veteran's 
participation in Operation Allen Brook (which was confirmed 
by service personnel records), or exposure to small arms fire 
while performing duties as a rifleman, the Board finds that 
service connection for bilateral hearing loss is not 
warranted.  In this regard, the veteran's service medical 
records are devoid of complaints, treatment or diagnoses of 
bilateral hearing loss.



Upon enlistment examination in July 1966, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5 (10)
-10 (0)
-5 (5)
-5(5)
-10 (-5)
LEFT
-5 (10)
-5 (5)
-5 (5)
-10(0)
-10 (-5)

(Prior to November 1967, the service department reported 
audiometric test results under American Standard Associates 
(ASA) values.  The Department of Defense adopted the 
International Standards Organization (ISO) values in November 
1967. In July 1966, the VA adopted the ISO standard, which is 
the standard applied in 
38 C.F.R. § 3.385.  The figures in parentheses represent the 
conversion from the ASA to the ISO values.)

During medical examination in October 1967, the veteran 
received a 15/15 on the whispered and spoken voice tests.  
Upon separation examination in August 1968, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
5
10
LEFT
5
5
5
10
10

The Board would note at this juncture that the basis for the 
veteran's argument that he sustained acoustic trauma during 
active duty service was the "significant shift" in hearing 
thresholds from 1966 to 1968.  He contends the audiological 
evaluations are objective evidence of the onset of bilateral 
hearing loss during service.  It is clear, however, that when 
the audiometric evaluations are converted as shown above, the 
shift was only minimal and/or showed improvement in some 
frequencies.

There are no records from the veteran's Reserve period of 
service from November 1970 to November 1973.  Records from 
the Reserve period of service from January 1979 to January 
1982, reveal the veteran had high frequency left ear hearing 
loss upon enlistment examination in January 1979.  This is 
outside the one year presumptive period following discharge 
from active duty service for sensorineural hearing loss.  
38 C.F.R. §§ 3.307, 3.309.

Specifically, the January 1979 report of medical history from 
the veteran's Reserve period of service revealed he denied 
ear trouble and hearing loss.  The corresponding medical 
examination contained, pure tone thresholds, in decibels, as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
5
5
LEFT
25
10
5
5
45

An April 1979 audiological evaluation contained the exact 
findings as January 1979.  No additional records are 
available.

Post-service, the veteran was first diagnosed with bilateral 
hearing loss in May 1998, which is also outside the one year 
presumptive period for sensorineural hearing loss.  38 C.F.R. 
§§ 3.307, 3.309.

Despite evidence of left ear hearing loss in 1979 and 
bilateral hearing loss as of 1998, there is no evidence of 
record to substantiate the critical second and third 
components of the Hickson inquiry, as enumerated above.  In a 
December 1998 audiological evaluation, the veteran presented 
with a gradual loss of hearing that had been noted only over 
the past several years, though the veteran indicated that it 
began while it began in the military.

On VA examination in January 2006, it was noted that the 
veteran claimed that he first began noticing hearing loss in 
the late 1960's.  On review of the records from that period, 
however, the January 2006 examiner noted that the July 1966 
and August 1968 audiological evaluations showed hearing 
sensitivity within normal limits bilaterally.  Post-service, 
the veteran reported that he worked in the woods with ear 
protection for approximately two years.  The veteran also 
stated that he hunted without hearing protection, and that he 
used a chain saw and did carpentry with hearing protection.  
The examiner noted the veteran was exposed to howitzers while 
wearing hearing protection during his Reserve service.  The 
VA examiner provided his medical opinion that the veteran's 
bilateral hearing loss was less likely as not related to 
military service "but more likely related to post service 
noise exposure, as well as aging effects."   See January 
2006 VA examination report.  

Upon VA examination in September 2006, bilateral hearing loss 
was again opined to be less likely than not related to 
military noise exposure.  The examiner gave the following 
opinion:  

Given [the veteran's] hearing sensitivity 
is documented as within normal limits 
from the time of enlistment to time of 
separation it is less likely than not 
that his current hearing loss is related 
to his military noise exposure as noise 
induced hearing loss typically does not 
present with a delayed onset.

In an October 2006 addendum opinion, the examiner noted the 
veteran had mild to moderate hearing loss from 4000 Hertz to 
6000 Hertz upon examination in January 1979 for his second 
enlistment into the Army National Guard.  The examiner 
indicated that while the veteran had documented noise 
exposure to cannon fire as a cannon operator and cannon fire 
direction specialist during his National Guard tours, the 
documented hearing loss in the left ear only was not 
consistent with that type of noise induced hearing loss as 
exposure to high decibel levels associated with cannon fire 
would certainly have affected both ears.  The October 2006 
examiner also indicated that asymmetric hearing loss with a 
left ear deficit was consistent with right handed shooting of 
a fire arm.  The examiner noted the September 2006 report of 
post-service recreational hunting, which the examiner opined 
was consistent with a left ear deficit in hearing.  The 
examiner stated that there was no clinical evidence to 
suggest that the veteran's hearing loss had it's onset during 
National Guard service as the left ear hearing loss was a 
pre-existing condition.  Finally, the examiner concluded with 
the following statement: 

Thus, my original opinion upon C&P 
examination performed 9/27/06 continues 
to stand and it is less likely than not 
given the aforementioned evidence that 
the veteran's current hearing loss is 
related to his military noise exposure 
based on normal hearing sensitivity from 
enlistment to separation of active duty 
and lack of sufficient evidence in his 
SMRs (service medical records) during his 
National Guard duty.

In multiple statements, as well as those made to the 
undersigned during the August 2007 Board hearing, the veteran 
contends that his post-service occupational and recreational 
noise exposure was incorrectly stated by the January, 
September, and October 2006 VA examiners.  As a result of 
these sort of contentions, the RO sought an addendum opinion 
in February 2007.  

The RO noted the veteran asserted the following: he was 
exposed to weapons fire as an infantry squad leader in 
Vietnam; he was exposed to noise from 500 pound bombs during 
combat in Vietnam; he had significant hearing loss from 1966 
to 1968; although he worked in the woods for a period of time 
after service, his chain saw exposure was limited; his 1979 
left ear hearing loss was documented prior to his working in 
the woods in logging in 1980; he was a full time student from 
1970 to 1973 and worked only part-time as a ranger and 
surveyor; he has used less than one box of shells total while 
hunting; and during his National Guard service he was located 
close to firing batteries (within 50 yards) without hearing 
protection.  The examiner reviewed the addendum opinion 
request, which contained the aforementioned information. 

In February 2007, the VA examiner indicated that she reviewed 
the service records for a third time.  She stated that her 
medical opinion, that the veteran's current hearing loss was 
less likely than not due to noise exposure in service, 
remained the same.  The VA examiner reasoned that the 
veteran's hearing loss or sensitivity upon discharge from 
service in 1968 was below the normal range of hearing 
sensitivity for a normal functioning adult, i.e. 25 decibels 
or lower.  The examiner stated that she did not agree that 
the veteran sustained any loss of auditory acuity as result 
of noise exposure during service.  This is very strong 
medical evidence standing against the veteran's claim.

She further reasoned that if ongoing noise exposure was 
eliminated, then hearing loss due to previous noise exposure 
would not progress.  The examiner indicated that hearing may 
worsen, but if so it would be due to such other causes like 
aging.  She reiterated the conclusion that normal hearing 
sensitivity upon discharge was considered evidence that the 
veteran's current hearing loss was not related to noise 
exposure during his active duty.  

Furthermore, responding to the veteran's claim that his 
"decreased hearing threshold levels" across all frequency 
ranges showed a noise-induced hearing loss, the examiner 
indicated that noise-induced hearing loss did not present in 
a flat configuration.  She explained that noise-induced 
hearing loss most typically presents with a notched loss at 
the 4000 frequency range.  The veteran's hearing sensitivity 
upon discharge from the Marine Corps did not have a 
configuration that was consistent with textbook noise-induced 
hearing loss and was, in fact, normal.

The examiner also noted that while the veteran contended that 
the noise from the limited chain saw work and use of less 
than one box of shells total while hunting was not relevant 
and not comparable to his noise exposure during service, the 
fact remained that the veteran's hearing upon discharge from 
active service was normal.  For that reason, she found that 
his recreational and occupational noise exposure since 
service must be taken into consideration when opining in 
regard to his claim for service connection.  

Finally, the examiner commented on the fact that on his 
examination for enlistment in the National Guard in 1979, the 
veteran had moderate left ear hearing loss at 4000 hertz and 
normal hearing sensitivity in his right ear.  She stated that 
this hearing loss was not consistent with exposure to noise 
through the veteran's duties as fire direction specialist in 
the artillery.  Moreover, she indicated that such noise 
exposure to both ears would typically result in a noise-notch 
at the 4000 hertz frequency bilaterally and not an asymmetric 
hearing loss. 

Based on the aforementioned, the Board finds that left ear 
hearing loss at 4000 Hertz pre-existed the veteran's second 
period of National Guard service.  As noted at the outset, 
the presumption of soundness (38 U.S.C.A. § 1111; 38 C.F.R. § 
3.304) and the presumption of aggravation (38 U.S.C.A. § 
1153; 38 C.F.R. § 3.306), apply only to periods of active 
military service.  See Paulson, 7 Vet. App. at 470.  Thus, 
the veteran was not presumed sound upon his enlistment in 
1979.  There were no medical records showing a worsening of 
hearing sensitivity.  

As such, aggravation may not be conceded, especially in the 
light of the October 2006 VA opinion that left ear hearing 
loss pre-existed the veteran's National Guard service and 
there was a lack of sufficient evidence in his service 
medical records during his National Guard duty to show 
aggravation.  38 C.F.R. § 3.306.   Further, as delineated 
above, there is no evidence to support a finding that left 
ear hearing loss is related to any prior claimed acoustic 
trauma during active service.  38 C.F.R. § 3.303.  Finally, 
the currently demonstrated bilateral hearing loss has 
repeatedly been found by multiple examiners not to be related 
to the veteran's active military service.  Id.  

While the veteran contends that bilateral hearing loss is due 
to some aspect of his period of active military service 
and/or Reserve service, his statements do not constitute 
competent evidence of a medical nexus opinion.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).  The evidence is 
not in relative equipoise.  Thus, the preponderance of the 
evidence is against the claim, and the appeal must therefore 
be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 
F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 
Vet. App. 49, 55-57 (1990).   

	(CONTINUED ON NEXT PAGE)




ORDER

Entitlement to service connection for bilateral hearing loss 
is denied.


____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs