Citation Nr: 1046331 Decision Date: 12/10/10 Archive Date: 12/20/10 DOCKET NO. 06-29 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1975 to April 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Travel Board hearing; he failed to appear for such hearing scheduled in April 2008. In October 2009 the case was remanded for additional development. FINDING OF FACT It is not shown that the Veteran has, or at any time since he filed his claim has had, a hearing loss disability of either ear. CONCLUSION OF LAW Service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484- 86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A March 2005 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter informed the Veteran of disability rating and effective date criteria. A September 2010 supplemental statement of the case readjudicated the matter (curing any notice timing defect). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) were determined to be unavailable. In July 2005 a Finding of Unavailability was made after multiple attempts to secure the records. As the Veteran's service records were apparently lost at the San Diego RO after 1983, VA has a heightened duty to assist him in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit- of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Pursuant to the Board's October 2009 remand (and in light of the heightened duty to assist) the RO sought identification of (and authorizations for releases of records of) treatment the Veteran alleged he received for hearing loss. A January 2010 letter was mailed to the Veteran's current listed address; it was returned as undeliverable. The RO conducted an exhaustive search to verify the Veteran's current address. Searches of the VA medical system and Social Security Administration (SSA) registry yielded the same address as listed in January 2010; seeking information from a bank was not possible as the Veteran was not receiving periodic VA benefits by direct deposit. The RO made one final attempt to contact the Veteran by correspondence to his last known prior address in March 2010. The letter was not returned as undeliverable. However, he has not responded. The Board finds that VA has exhausted all reasonable measures to contact the Veteran and that no further assistance in the development of his claim (requiring his participation) is necessary. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, a claimant has a concomitant duty to cooperate; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The evidence of record shows that the Veteran had been receiving SSA disability benefits. March 2005 correspondence from SSA notes that the Veteran was receiving benefits for non-service- connected disabilities (and not for hearing loss). Accordingly, the evidence of record affirmatively establishes that the Veteran's SSA records would not be pertinent to the matter at hand; they need not be sought. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). (As he has since moved, the records likewise would not be useful in locating his current whereabouts.) The RO arranged for a VA examination in June 2006. The examination is adequate as it was conducted in accordance with regulatory guidelines. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). VA's duty to assist is met. B. Factual Background The Veteran's DD Form-214 reflects that he was an infantryman. In an August 2005 letter he stated that during service he was "working around the trucks and helicopters and exposed to more noise than most people in these areas at the time." VA treatment records from September 1994, November 1996, December 1998, and May 1999 are silent for complaints, findings, treatment, or diagnoses relating to hearing loss. A June 2005 letter from H. S. states that the Veteran worked for Southern California Carbide starting in February 1979 and it was noticed that he had trouble hearing while setting up grinders. H.S. noted that hearing the touch of the grinders was very important. On June 2006 VA audiological evaluation, the Veteran reported that he recalled that during service he had bleeding from his ear, without any treatment. He also reported that he was on a rifle team, served in the infantry, and engaged in helicopter refueling during service, all noise hazardous activities, and all without hearing protection. His postservice noise exposure included working with dragsters, without hearing protection. On audiometric testing the examiner found that the Veteran's responses to puretone testing were invalid. Speech audiometry revealed speech recognition ability of 100 percent in each ear. The examiner opined "there is no evidence to support a hearing loss and in today's hearing examination, the Veteran's responses were invalid." C. Legal Criteria and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service incurrence or aggravation of organic disease of the nervous system (to include SNHL) may be presumed if such is manifested to a compensable degree within a year following a Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by 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 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is no evidence of hearing loss in service. Furthermore, there is no evidence that SNHL was manifested in the first year following the Veteran's discharge from active duty. Consequently, service connection for a hearing loss disability on the basis that such disability became manifest in service and persisted, or on a presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. § 1112) is not warranted. The threshold matter for consideration here, as with any claim seeking service connection is whether the appellant actually has the disability for which service connection is sought, i.e., a hearing loss disability in either ear. As is noted above, governing regulations specify that to constitute a disability hearing loss must meet a level of diminution of hearing acuity outlined by regulation, and also that the testing to establish whether there is such level of diminution of hearing acuity must be in accordance with regulatory provisions. In the instant case, the only audiometry during the appeal period in accordance with the regulatory specifications was on VA examination in June 2006, and did not find a hearing loss disability as defined in 38 C.F.R. § 3.385. Because by regulation hearing loss disability must be established by audiometry that is in accordance with the regulatory guidelines, the Veteran's own account and/or that in the lay supporting statement to the effect that he is hard of hearing, regardless of their credibility, are insufficient to establish that he has a hearing loss disability. See 38 C.F.R. § 3.385. The Board notes that the Veteran has alleged private providers found he has a hearing loss. He has not identified such providers, or provided releases for their records. Such bare allegations are self-serving, and are not probative evidence. It is also noteworthy that by not informing VA of his whereabouts or responding to any VA communications, he has made it impossible for VA to provide any further assistance in the development of evidence to support his claim. In summary, the record does not show that the Veteran has a hearing loss disability in either ear. Therefore, he has not presented a valid claim of service connection for such disability, and his appeal in the matter must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs