Citation Nr: 0812885 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-25 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from August 1961 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The veteran does not have current hearing loss disability according to VA standards. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes at the outset that VA has an obligation to notify claimants of what information or evidence is needed to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. With respect to the veteran's claim for service connection for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions or can rebut a presumption of any prejudicial error identified. 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); Sanders v. Nicholson, 487 F. 3d 881, 889 (2007) (any error in providing Veterans Claims Assistance Act (VCAA) notice is presumed prejudicial and the Secretary has the burden of showing the error was not prejudicial to the claimant). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; and (4) must specifically request that the claimant provide any evidence in his possession that pertains to the claim. When a claim is for service connection, VA must also provide notice that a disability rating and an effective date will be assigned for an award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). To the extent possible, VCAA notice should be provided to a claimant before an initial unfavorable agency of original jurisdiction decision on a claim. However, if, for whatever reason, this did not occur, VA can "cure" this timing defect by providing any necessary notice and going back and readjudicating the claim such that the intended purpose of the notice is not frustrated and the veteran is given opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 07- 7130 (Fed. Cir. September 17, 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Lack of prejudicial harm for failure to provide proper notice may be established by showing (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders, supra. Here, in January 2004, VA sent the veteran a timely VCAA notice letter that satisfied all the requirements noted above - except that it did not advise him that a downstream disability rating and an effective date for an award of benefits would be assigned if service connection is eventually granted. See Dingess, supra. The veteran has since been provided this required Dingess notice, in a March 2006 letter, and he has not provided any additional evidence in response to this notice to warrant readjudicating his claim and providing another SSOC. See, e.g., Medrano v. Nicholson, 21 Vet. App. 165, 172 (2007) (finding that requiring readjudication after the appellant had no further evidence to submit would result in an unnecessary burden with no benefit flowing to the veteran.) VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran had VA audiometric and ear disease examinations in May 2004 and his service and VA medical records have been obtained. In this regard, it is noted that it is alleged by and on behalf of the veteran that the May 2004 VA examination is inadequate for rating purposes because the examination report notes that "acoustic reflexes could not be evaluated due to inability to maintain a hermetic seal, bilaterally." However, as noted in the November 2006 Memorandum from the RO, the examiner clearly noted that there was good inter-test reliability, bilaterally, and there was no problem with the Maryland CNC or the pure tone air conduction thresholds, the tests upon which hearing loss is evaluated. Accordingly, the Board finds that the May 2004 VA audiometric and ear disease examinations are adequate for rating purposes and a remand to afford the veteran another examination is not warranted. Accordingly, it is reasonable to conclude that any failure on the part of VA to provide additional notice or assistance, if alleged, would not affect the outcome of the decision concerning the veteran's claim decided herein. Therefore, such failure, if identified, would be harmless error. See Mayfield IV, supra, and 38 C.F.R. § 20.1102. One final preliminary point bears mentioning, the Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the Board discuss each and every piece of evidence submitted by the appellant or obtained on his behalf. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as sensorineural hearing loss (as a disease of the central nervous system), which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). The veteran contends that service connection for bilateral hearing loss is warranted because this disorder is the result of exposure to acoustic trauma due to jet aircraft engine noise as well as noise from qualifying with various firearms. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC test are less than 94 percent. See 38 C.F.R. § 3.385. The veteran's service records show that, upon enlistment examination in August 1961, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 LEFT 20 20 20 Service medical records also show that, upon examination for remote assignment in July 1966, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 30 35 25 LEFT 15 10 0 0 5 In addition, the examination report notes hearing loss to right ear. Similarly, upon periodic examination in November 1973, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 15 10 LEFT 0 5 10 5 15 Upon periodic examination in May 1978, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 15 LEFT 5 10 10 0 0 Finally, upon periodic examination in January 1983, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 5 10 LEFT 10 10 5 5 0 Post service VA medical records reflect that, upon VA Agent Orange examination in August 1984, the veteran's auditory acuity was normal. However, subsequent VA treatment records, to include ENT (ear nose and throat) examination in September 2003 note that audio evaluation indicated mild HFSNHL (high frequency sensorineural hearing loss). These records do not include results of audiometric testing with pure tone thresholds in decibels. On the VA audiological evaluation in May 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 15 20 30 30 LEFT 0 10 15 30 25 Speech audiometry revealed speech recognition ability of 96 percent in each ear. With respect to the diagnosis, the examiner noted that audiometric testing hearing to be within normal limits, sloping to mild to moderate sensorineural hearing loss with air-bone gap that 4 kHz [kilohertz] in the right ear and within normal limits sloping to mild to moderate sensorineural hearing loss with an air-bone gap at 4 kHz in the left ear. Word recognition scores were characterized as excellent, bilaterally. The examiner concluded that the military noise is as likely as not a contributing factor to the veteran's current hearing loss. The Board acknowledges that the May 2004 VA examination report includes the opinion that the military noise is as likely as not a contributing factor to the veteran's current hearing loss. However, given the results of the veteran's most recent VA audiometric examination in May 2004, the veteran does not have impaired hearing by VA standards. In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the United States Court of Appeals for Veterans Claims held that the regulation prohibited an award of service connection where audiometric test scores are within the established limits. The veteran has not submitted and the record does not include medical evidence showing that the veteran currently meets the requirements of 38 C.F.R. § 3.385. As such, in the absence of evidence demonstrating that the veteran has hearing loss which meets the VA standards, service connection is not warranted and his claim must be denied. In addition, the Board further acknowledges the veteran's argument that, since there is hearing loss, why does VA not acknowledge this disability with a zero percent rating. This way, the veteran argues that, should his hearing decline in the future, he will not have to start all over. However, while the Board is sympathetic to the appellant, both the Board and the appellant are bound by the law, and this decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because the result may appear to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to service connection for bilateral hearing loss is denied. _______________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs