Citation Nr: 0813087	
Decision Date: 04/21/08    Archive Date: 05/01/08

DOCKET NO.  06-15 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

B.W. Hennings, Associate Counsel




INTRODUCTION

The veteran served on active duty for training from February 
1994 to June 1994 and on active duty from August 1995 to July 
1996 and from December 2002 to September 2004.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Boston, Massachusetts, which denied the benefit sought on 
appeal. 

Documents submitted by the veteran's representative with the 
November 2007 Statement in Lieu of a 646 are duplicates of 
records already in the claims file and previously considered 
by the RO.


FINDING OF FACT

The veteran does not have hearing loss disability in the 
right or left ear for VA disability compensation purposes.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by 
active military service, and bilateral hearing loss may not 
be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 
1112 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007).




REASONS AND BASES FOR FINDING AND CONCLUSION

Legal criteria

Applicable law provides that service connection will be 
granted if it is shown that the veteran suffers from 
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 active military service.  38 U.S.C.A. § 1110; 38 
C.F.R. § 3.303.

That an injury 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).

Certain chronic disabilities, such as a sensorineural hearing 
loss, are presumed to have been incurred in service if 
manifest to a compensable degree within one year of discharge 
from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 
38 C.F.R. §§ 3.307, 3.309 (2007).

Service connection may also be granted for any disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

For the purpose of applying the laws administered by VA, 
impaired hearing will be considered a disability when the 
auditory threshold for any of the frequencies of 500, 1000, 
2000, 3000 and 4000 Hertz is 40 decibels or greater; the 
auditory thresholds for at least three of these frequencies 
are 26 decibels or greater; or speech recognition scores 
using the Maryland CNC Test are less than 94 percent.  
38 C.F.R. § 3.385 (2007).



History and analysis

Service medical records first show evidence of bilateral 
hearing loss in a March 2003 audiogram.  The audiometric test 
results met the criteria for hearing loss disability in each 
ear; the pure tone threshold was 40 decibels at 4000 Hertz in 
the left ear and the pure tone threshold was 40 decibels at 
4000 Hertz in the right ear.  The service medical records 
also show treatment for complaints related to hearing loss 
from an incident where the veteran was subject to acoustic 
trauma, in this case the explosion from an improvised 
explosive device (IED) in October 2003.  

An April 21, 2004 audiogram shows the pure tone threshold was 
40 decibels at 4000 Hertz in the left ear and the pure tone 
threshold was 50 decibels at 4000 Hertz in the right ear.  An 
April 23, 2004 audiogram shows the pure tone threshold was 40 
decibels at 4000 Hertz in the left ear and the pure tone 
threshold was 45 decibels at 4000 Hertz in the right ear.  
There is also a treatment note from that day which diagnosed 
sensorineural hearing loss status post blast exposure.  

The veteran was fitted for hearing aids in June 2004 and an 
August 2004 audiogram shows the pure tone threshold was 45 
decibels at 4000 Hertz in the left ear and the pure tone 
threshold was 55 decibels at 4000 Hertz in the right ear.  

A November 2004 VA audiological examination was conducted in 
response to the veteran's VA claim of service connection for 
hearing loss.  The audiogram shows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
15
35
LEFT
15
15
15
20
35

The veteran was noted to have speech recognition of 98% and 
100% in the left and right ear, respectively.  The VA 
examiner, who examined the veteran as well as the veteran's 
entire claims file, did not find hearing loss as is defined 
by VA.  

The Board understands and appreciates that the veteran was 
exposed to acoustic trauma in service and exhibited hearing 
loss during service.  However, the veteran's post service 
hearing acuity is the deciding factor.  The VA audiological 
examination conducted soon after discharge shows that the 
veteran did not have hearing loss disability as defined by 
the VA.  See 38 C.F.R. § 3.385.

The record contains no post service evidence indicating that 
the veteran has hearing loss in either ear as defined by VA.  
Accordingly, the Board concludes that the preponderance of 
the evidence is against this claim.  As the preponderance of 
the evidence is against the claim, the benefit of the doubt 
doctrine is not applicable, and the claim for service 
connection for bilateral hearing loss must be denied.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

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. 2007); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his or her possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  Notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  The notice requirements 
of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a "service connection" claim, defined to 
include:  (1) veteran status; (2) existence of a disability; 
(3) a connection between the veteran's service and the 
disability; (4) degree of disability; and (5) effective date 
of the disability.  See Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

By an October 2004 letter the RO sent the veteran the 
required notice.  The letter specifically informed him of the 
type of evidence needed to support the claim, who was 
responsible for obtaining relevant evidence, where to send 
the evidence, and what he should do if he had questions or 
needed assistance.  In this letter he was told to submit all 
pertinent evidence he had in his possession pertaining to the 
claim.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
The Board acknowledges that the veteran was not provided 
notice of the appropriate disability rating and effective 
date of any grant of service connection, as required by 
Dingess, supra, until November 2007.  There is no prejudice 
to the veteran in proceeding with the issuance of a final 
decision despite the timing of this notice, as his claim for 
service connection is being denied.  See Dingess, supra.  
Therefore, issues concerning the degree of disability or the 
effective date of the award do not arise here.

With respect to VA's duty to assist the veteran, the RO has 
obtained the veteran's service medical records, service 
personnel records and provided the veteran a VA medical 
examination.  The veteran submitted a statement of medical 
examination and duty status dated February 2006.  The veteran 
has been accorded ample opportunity to present evidence and 
argument in support of the appeal and has done so.  Neither 
the veteran nor his representative has indicated that there 
are any additional pertinent records to support the veteran's 
claim.  

In sum, the Board is satisfied that the originating agency 
properly processed the veteran's claims after providing the 
required notice and that any procedural errors in the 
development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  




ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs