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