Citation Nr: 0813223	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  06-24 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

B. Berry, Associate Counsel


INTRODUCTION

The veteran served on active duty from December 1968 to 
January 1973.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in April 2006 by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Lincoln, Nebraska.


FINDINGS OF FACT

1.   The veteran has a current left ear hearing disability.

2.   The competent medical evidence of record does not show 
that a left ear hearing disability was identified during 
service or that the sensorineural component of the currently 
diagnosed left ear hearing loss manifested to a compensable 
degree within the one-year presumptive period following the 
veteran's discharge from service and there is no competent 
medical evidence of record that otherwise links the veteran's 
left ear hearing loss to his service.


CONCLUSION OF LAW

A left ear hearing loss disorder was not incurred in or 
aggravated by active service.  38 U.S.C.A. § 1110 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes a 
duty on the United States Department of Veterans Affairs (VA) 
to notify and assist a claimant in developing a claim.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a).  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); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in her or his possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  This 
notice must be provided prior to an initial unfavorable 
decision on a claim by the agency of original jurisdiction 
(AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  

A January 2005 VCAA letter informed the appellant of what 
evidence was required to substantiate his claims for service 
connection for hearing loss disability.  This letter also 
informed him of his and VA's respective duties for obtaining 
evidence.  The VCAA letter requested the veteran to provide 
any evidence in his possession and he was informed that it 
was ultimately his responsibility to ensure that VA received 
any evidence not in the possession of the Federal government.  
A letter dated in March 2006 provided the veteran with notice 
of the rating criteria and effective date provisions 
pertinent to the veteran's claim prior to adjudication of 
that claim.  Therefore, the Board finds that the requirements 
of VCAA regarding the duty to notify have been met and that 
VA has no further duty prior to Board adjudication.

With regard to the duty to assist, the claims file contains 
service medical records and three VA examination reports.  
Additionally, the claims file contains the veteran's 
statements in support of his claim.  The Board has carefully 
reviewed such statements and has determined that he has not 
identified further available evidence not already of record.  
Furthermore, there is no other indication in the file that 
there are additional relevant records that have not been 
obtained.  Based on the foregoing, the Board finds that all 
relevant facts have been developed properly and sufficiently 
in this appeal and no further development is required to 
comply with the duty to assist the veteran in developing the 
facts pertinent to his claim. 

II. Merits of the Claim for Service Connection

Legal Criteria

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. § 1110.  For the showing of 
chronic disease in service there is required a combination of 
manifestations sufficient to identify the disease entity and 
sufficient observation to establish chronicity at the time.  
38 C.F.R. § 3.303(b).  If chronicity in service is not 
established, a showing of continuity of symptoms after 
discharge is required to support the claim.  Id.  Service 
connection may be granted for any disease diagnosed after 
discharge, when all of the evidence establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed 
disability, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Duenas v. Principi, 18 Vet. App. 512, 519 
(2004) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995)).

For purposes of applying VA laws, impaired hearing is 
considered 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 speech 
recognition scores using the Maryland CNC Test are less than 
94 percent.  38 C.F.R. § 3.385.

The requirements for service connection for hearing loss as 
defined in 38 C.F.R. § 3.385 need not be shown by the results 
of audiometric testing during a claimant's period of active 
military service in order for service connection to be 
granted.  The United States Court of Appeals for Veterans 
Claims (Court) has held that 38 C.F.R. § 3.385 does not 
prevent a claimant from establishing service connection on 
the basis of post-service evidence of hearing loss related to 
service when there were no audiometric scores reported at 
separation from service.  Ledford v. Derwinski, 3 Vet. App. 
87, 89 (1992).  The Court has also held that the regulation 
does not necessarily preclude service connection for hearing 
loss that first met the regulation's requirements after 
service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  
Thus, a claimant who seeks to establish service connection 
for a current hearing disability must show, as is required in 
a claim for service connection for any disability, that a 
current hearing disability is the result of an injury or 
disease incurred in service, the determination of which 
depends on a review of all the evidence of record including 
that pertinent to service.  38 U.S.C.A. §§ 1110 and 1131; 
C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60.

A veteran will be considered to have been in sound condition 
when examined, accepted and enrolled for service, except as 
to defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable (obvious or 
manifest) evidence demonstrates that an injury or disease 
existed prior thereto and was not aggravated by such service.  
Only such conditions as are recorded in examination reports 
are considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. 
§ 3.304(b).  When determining whether a defect, infirmity, or 
disorder is "noted" at entrance into service, supporting 
medical evidence is needed.  Crowe v. Brown, 7 Vet. App. 238 
(1994).  Mere transcription of medical history does not 
transform information into competent medical evidence.  
LeShore v. Brown, 8 Vet. App. 406 (1995).  

A pre-existing injury or disease will be considered to have 
been aggravated by active service where there is an increase 
in disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. 
§ 3.306(a).  Clear and unmistakable evidence (obvious or 
manifest) is required to rebut the presumption of aggravation 
where the pre-service disability underwent an increase in 
severity during service.  38 C.F.R. § 3.306(b).  Aggravation 
may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during, and subsequent to service.  
38 C.F.R. § 3.306(b).  See also Davis v. Principi, 276 F.3d 
1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a 
temporary flare-up, without more, does not satisfy the level 
of proof required of a non-combat veteran to establish an 
increase in disability).  

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. 
App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. 
App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992) (a layperson without the appropriate medical 
training and expertise is not competent to provide a 
probative opinion on a medical matter, to include a diagnosis 
of a specific disability and a determination of the origins 
of a specific disorder).  Competent medical evidence means 
evidence provided by a person who is qualified through 
education, training, or experience to offer medical 
diagnoses, statements, or opinions.  Competent medical 
evidence may also mean statements conveying sound medical 
principles found in medical treatises.  It also includes 
statements contained in authoritative writings, such as 
medical and scientific articles and research reports or 
analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence 
means any evidence not requiring that the proponent have 
specialized education, training, or experience.  Lay evidence 
is competent if it is provided by a person who has knowledge 
of facts or circumstances and conveys matters that can be 
observed and described by a lay person.  38 C.F.R. 
§ 3.159(a)(2).  

The standard of proof to be applied in decisions on claims 
for veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A 
veteran is entitled to the benefit of the doubt when there is 
an approximate balance of positive and negative evidence.  
See 38 C.F.R. § 3.102.  When a veteran seeks benefits and the 
evidence is in relative equipoise, the veteran prevails.  See 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The 
preponderance of the evidence must be against the claim for 
benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 
(1996).  

Analysis

The veteran claims that his previous military service caused 
him to incur bilateral hearing loss and tinnitus.  He 
asserted that he was exposed to loud noise from aircrafts 
landing and taking off during his military service.  The RO 
granted the veteran service connection for right ear hearing 
loss and tinnitus in an April 2006 rating decision.  However, 
the RO denied service connection disability for left ear 
hearing loss.  The veteran appeals this decision.

In assessing the veteran's service connection claim for 
hearing loss, the Board must first determine whether the 
veteran has a hearing disability under VA regulations.  
Hearing disabilities are determined for VA purposes using 
criteria provided under 38 C.F.R. § 3.385.  There under, a 
hearing disability will be determined where any of the 
following threshold measures has been found:  where the 
auditory threshold in any of the frequencies 500, 1000, 2000, 
3000, or 4000 Hertz is 40 decibels or greater; where the 
auditory threshold for at least three of the frequencies is 
26 decibels or greater; or where speech recognition scores 
using the Maryland CNC Test are less than 94 percent.  Id.         

The Board finds that the veteran has current hearing loss in 
the left ear.  A March 2006 VA audiology examination report 
showed auditory thresholds 40 decibels (dB) or higher at 
2000, 3000, and 4000 Hertz (Hz) in the left ear.  This 
examination report also showed a speech recognition score 
less than 94 percent in the left ear at 92 percent.  38 
C.F.R. § 3.385.  The VA examiner noted that the veteran had 
sensorineural hearing loss in his left hear, moderately 
severe to profound with gradually sloping configuration.  As 
such, the evidence shows that the veteran has a current left 
ear hearing loss disability.  Pond, 12 Vet. App. at 346.    

In his formal claim dated in August 2005, the veteran 
indicated that he was exposed to loud noise during his time 
in service.  Three VA examination reports dated in January 
2006 and March 2006 show that the veteran reported a history 
of noise exposure related to his service as an aircraft 
mechanic.  The veteran's DD Form 214 confirms that the 
veteran served as an aircraft mechanic.  It is likely that 
the veteran was exposed to loud noises from aircraft; as such 
noise exposure is consistent with the conditions of his 
active military service.

The veteran contends that he had hearing loss in his left ear 
prior to service and that his hearing loss was aggravated in 
service.  See May 2006 notice of disagreement.  Audiometric 
testing measures threshold hearing levels in decibels (dB) 
over a range of frequencies in Hertz (Hz).  The threshold for 
normal hearing is from 0 to 20 dB, and higher threshold 
levels indicate some degree of hearing loss.  Hensley v. 
Brown, 5 Vet. App. 155 (1993) citing CURRENT MEDICAL 
DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. 
eds., 1988).   However, hearing loss does not constitute a 
disability for VA purposes when the threshold levels at 500, 
1000, 2000, 3000, and 4000 Hz are all less than 40 dB and at 
least three are 25 dB or less.  See 38 C.F.R. § 3.385.  The 
entrance examination noted that the veteran's ears were 
normal and his hearing and ears were given a numeral 
designation of "1" under PULHES, which indicates that the 
veteran's ears were at a high level of fitness and the 
veteran was medically fit for any military assignment.  The 
veteran's entrance examination noted that it used the 
American Standards Association (ASA) units.  Therefore, to 
compare the threshold hearing levels to later examinations, 
the ASA units must be converted to the International Standard 
Organization (ISO) units.  The original ASA units will be 
shown in parenthesis.  The veteran's entrance examination 
shows the following threshold hearing levels for the left ear 
as converted from ASA units to ISO units: 20 dB (5 dB) at 500 
Hz, 10 dB (0 dB) at 1000 Hz, 20 dB (10 dB) at 2000 Hz, 15 dB 
(5 dB) at 3000 Hz, and 35 dB (30 dB) at 4000 Hz.  In four out 
of the five frequencies the veteran's hearing is considered 
normal as the hearing threshold is 20 dB or below.  The 
entrance examination shows some hearing loss in the veteran's 
left ear at 4000 Hz.  As the entrance examination does not 
show that the veteran has hearing loss in his left ear at 40 
dB or higher at the required frequencies under VA regulations 
or that his auditory threshold for at least three of the 
frequencies was 26 decibels or greater, the evidence 
indicates the veteran did not have a hearing loss disability 
prior to his military service.  See Hensley, 5 Vet. App. at 
157.  Therefore, the veteran's hearing is presumed to be 
sound upon entry into service.

The evidence of record indicates that the veteran's hearing 
loss was not aggravated by military service and it did not 
meet the criteria under VA laws and regulations for a hearing 
disability in service or within the one-year presumptive 
period following his discharge.  The service medical records 
are absent of complaints of hearing loss or treatment for 
hearing impairment in service or within one year after 
military service.  At his August 1973 separation examination, 
the veteran's hearing levels for the left ear were measured 
on audiometric testing as follows: 15 dB at 500 Hz, 15 dB at 
1000 Hz, 15 dB at 2000 Hz, 15 dB at 3000 Hz, and 30 dB at 
4000 Hz.  The separation examination noted that the veteran 
had bilateral high frequency hearing loss and recommended 
hearing conservation.  In comparing the entrance and 
separation examinations, there is no evidence of an overall 
worsening of the veteran's hearing in his left ear.  The 
veteran's hearing in the left ear decreased by 5 dB at 1000 
Hz; however, at the other recorded frequencies the veteran's 
hearing either stayed the same or improved slightly from the 
time of entrance into service.  Moreover, the evidence does 
not show that the veteran had a hearing loss disability in 
the left ear at discharge from service as the separation 
examination does not show that the veteran had hearing loss 
in his left ear at 40 dB or higher at the required 
frequencies or that that his auditory threshold for at least 
three of the frequencies were 26 decibels or greater.  The 
first medical evidence that shows a hearing disability under 
VA laws and regulations was in January 2006, approximately 33 
years after the veteran was discharged from service.  Because 
the veteran's hearing loss did not worsen during service and 
the separation examination showed that the veteran did not 
have a hearing loss disability in his left ear, the Board 
finds that the veteran's hearing loss was not aggravated by 
service.  Hensley, 5 Vet. App. at 164.

As there is no evidence of a hearing loss disability in the 
veteran's left ear as defined by VA regulation shown in 
service or manifested to a degree of 10 percent or more 
within the one year presumptive period from service 
discharge, the threshold question is whether there is 
sufficient medical evidence to establish an etiological link 
between the veteran's current hearing loss and his active 
service, to include any noise exposure in service.  The Board 
notes that there is no competent medical opinion linking the 
veteran's hearing impairment to his period of active military 
service.  In fact, the record contains a medical opinion 
opposing the veteran's claim.  A January 2006 VA audiological 
examination noted that the veteran's tinnitus had the same 
causative factor as the hearing loss since both appear to 
have an onset during military service.  However, this 
examination and opinion does not reflect competent medical 
evidence as the VA examiner certified that the combined use 
of the puretone audiometrix average and the speech 
discrimination was inappropriate for evaluation and the 
veteran should return for further audiological evaluation.  
The veteran underwent a VA examination for ear disease in 
March 2006 and that examiner determined that it was not 
likely that the conductive component of the veteran's hearing 
loss was related to military service because of the absence 
of any type of head trauma and barotrauma during the 
veteran's military service.  In a separate March 2006 VA 
audiological examination, the examiner, which was the same 
examiner from the January 2006 VA examination, concluded that 
the veteran's hearing loss in his left ear was not related to 
his military service.  The VA examiner based his decision on 
the claims file, service medical records, statements made by 
the veteran during the examination and an examination of the 
veteran.  Therefore, the Board finds that the March 2006 VA 
examiner's examination and medical opinion are competent, 
credible and highly probative evidence.    

The veteran stated that his left ear hearing loss began in 
the military.  Lay persons can provide an account of 
observable symptoms based on using the five senses, such as 
in this case the veteran's observation that he has difficulty 
hearing and when he first noticed having problems with his 
hearing.  See Caldwell v. Derwinski, 1 Vet. App. 466, 469 
(1991).  However, lay assertions regarding medical matters 
such as an opinion whether a disability is related to an 
injury or disease in service has no probative value because 
lay persons are not competent to offer medical opinions.  
Espiritu, 2 Vet. App. at 494-95.  The veteran is not a 
licensed health care professional; therefore the lay evidence 
offered by the veteran is not competent medical evidence and 
does not prove a relationship between the veteran's hearing 
loss in his left ear and exposure to loud noise during 
military service.  As stated above, the only competent 
medical evidence of record asserts that the veteran's left 
ear hearing loss is not related to his military service.  

Under the provisions of 38 U.S.C.A. § 5107(b), the benefit of 
the doubt is to be resolved in the claimant's favor in cases 
where there is an approximate balance of positive and 
negative evidence in regard to a material issue.  The 
preponderance of the evidence, however, is against the 
veteran's claim and that doctrine is not applicable.  See 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, the 
veteran's claim for entitlement to service connection of a 
left ear hearing disability is not warranted.

	
ORDER

Entitlement to service connection for left ear hearing loss 
is denied.





____________________________________________
John E. Ormond, Jr. 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs