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