Citation Nr: 0812873	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  06-00 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans 
Affairs


ATTORNEY FOR THE BOARD

P. Olson, Associate Counsel




INTRODUCTION

The veteran had active military service from September 1980 
to April 1983.

This matter comes before the Board of Veterans' Appeals 
(Board or BVA) on appeal from a December 2003 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO) in San Diego, California.


FINDING OF FACT

The veteran's current level of bilateral hearing acuity does 
not constitute a disability for which service connection can 
be granted under applicable VA regulations.


CONCLUSION OF LAW

The veteran does not have a bilateral hearing disability that 
was incurred in or aggravated by active service.  38 U.S.C.A. 
§ 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303. 3.307, 
3.309, 3.385 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folder.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, all of the 
evidence submitted by the veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claim.  The 
veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  

I.	Veterans Claims Assistance Act of 2000

VA has met all statutory and regulatory notice and duty to 
assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2007). 

Letters dated in August 2003, August 2005, and March 2006 
fully satisfied the duty to notify provisions. 38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 
Vet. App. 183, 187 (2002). The veteran was aware that it was 
ultimately his responsibility to give VA any evidence 
pertaining to the claim.  The August 2005 letter told him to 
provide any relevant evidence in his possession.  See 
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II).  The March 2006 letter advised him of how VA 
determines disability ratings and effective dates.  See 
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Although the August 2005 and March 2006 letters were not sent 
prior to initial adjudication of the veteran's claim, this 
was not prejudicial to him, since he was subsequently 
provided adequate notice, and the claim was readjudicated and 
a statement of the case (SOC) was provided to the veteran in 
November 2005.  With respect to the March 2006 letter, since 
the Board has concluded that the preponderance of the 
evidence is against the claim for service connection, any 
questions as to the appropriate disability rating or 
effective date to be assigned are rendered moot, and no 
further notice was required.  

The veteran's service medical records and VA medical 
treatment records have been obtained, to the extent 
available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is 
no indication in the record that any additional evidence, 
relevant to the issues decided herein, is available and not 
part of the claims file.  The veteran was also accorded a VA 
examination in October 2005. 38 C.F.R. § 3.159(c)(4).

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).

II.	Service Connection

Service connection means that the facts establish that a 
particular injury or disease resulting in disability was 
incurred in the line of duty in the active military service 
or, if pre-existing such service, was aggravated during 
service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  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).      

The veteran contends that he acquired bilateral hearing loss 
as a result of the duties performed while he was on active 
duty.

With respect to claims for service connection for hearing 
loss, the United States Court of Appeals for Veterans Claims 
(hereafter "the Court"), has held that the threshold for 
normal hearing is from 0 to 20 decibels, and that higher 
threshold levels indicate some degree of hearing loss.  
Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court 
further opined that 38 C.F.R. § 3.385 then operated to 
establish when a hearing loss could be service connected.  
Hensley at 159.  For the purposes of applying the laws 
administered by the VA, impaired hearing is 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 the auditory thresholds for at least 
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 
are 26 or greater; or when word recognition scores using the 
Maryland CNC test are less than 94 percent.  38 C.F.R. § 
3.385.

On the authorized audiological evaluation in October 2005, 
pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
25
25
LEFT
10
10
15
20
20

Speech audiometry revealed speech recognition ability of 96 
percent in both ears.  

In order for the veteran to be granted service connection for 
hearing loss, there must be evidence of a service-connected 
disease or injury and a present disability which is 
attributable to such disease or injury.  

VA examination in October 2005, revealed that the veteran's 
current hearing acuity in both ears do not demonstrate an 
acoustic threshold of 40 decibels or greater at any level, or 
an acoustic threshold of greater than 25 decibels at any 
three levels, or a speech recognition score less than 94 
percent. 

Accordingly, there is no evidence that the veteran currently 
has any hearing loss disability that meets the criteria set 
forth in 38 C.F.R. § 3.385.  In the absence of competent 
medical evidence that a hearing loss disability exists and 
that it was caused by or aggravated by the veteran's military 
service, the criteria for establishing service connection for 
bilateral hearing loss have not been established.  38 C.F.R. 
§§ 3.303, 3.385. 




ORDER

Entitlement to service connection for bilateral hearing loss 
is denied



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs