Citation Nr: 1226432 Decision Date: 07/31/12 Archive Date: 08/03/12 DOCKET NO. 09-06 826 ) 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: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T.S. Kelly, Counsel INTRODUCTION The Veteran had active service from May 1982 to May 1993. He attended the U.S. Naval Academy from July 1978 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. This matter was previously before the Board in May 2011, at which time it was remanded for further development. The requested development has been accomplished insofar as possible and the matter is now ready for appellate review. FINDING OF FACT A current bilateral hearing loss disability for VA rating purposes has not been demonstrated. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION 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 the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. See Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet. The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). A review of the Veteran's service treatment records reveals that at the time of an October 1977 Service Academy-ROTC examination, testing revealed pure tone thresholds, in decibels, of 5, 0, 0, 5, and 5 for the left ear; and 5, 0, 5, 0, and 0, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On his October 1977 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear trouble. At the time of an October 1981 Pre-Commission examination, testing revealed pure tone thresholds, in decibels, of 5, 10, 5, 0, and 0 for the right ear; and 5, 5, 0, 0, and 0, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At a November 1985 examination, testing revealed pure tone thresholds, in decibels, of 10, 5, 10, 0, and 10 for the right ear; and 5, 10, -5, 10 and 0 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On his October 1981 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear trouble. At an August 1984 triennial officer examination, testing revealed pure tone thresholds, in decibels, of 10, 15,15, 0, and 0 for the right ear; and 0, 5, 0, 0, and -5 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On his August 1984 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear trouble. At the time of an April 1985 audiological evaluation, testing revealed pure tone thresholds, in decibels, of 5, 5, 5, -5, and 0 for the right ear, and 10, 5, -5, -5, and 0 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of the Veteran's February 1993 service separation examination, normal findings for the ears were reported. Audiological testing revealed pure tone thresholds, in decibels, of 15, 10, 0, 5, and -10 for the right ear, and 5, 5, -5, -5, and 25 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran has expressed his belief that his current hearing loss is related to his period of service. He has indicated that he believes that service connection should be granted for hearing loss. In conjunction with the May 2011 remand, the Veteran was afforded a VA audiological examination in February 2012. The examiner indicated that the claims folder was available and that it had been reviewed. Testing revealed pure tone thresholds, in decibels, of 15, 15, 10, 15, and 15 for the right ear, and 20, 20, 10, 10, and 20 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner indicated that the Veteran had normal hearing. She stated that as hearing was considered within normal limits, hearing loss was not considered related to service as the condition did not exist. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to some time in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). While the Veteran's hearing may have become worse since he was younger, there was no showing of a "hearing loss" disability as defined for VA rating purposes in service or subsequent to service. Simply stated, for VA purposes the Veteran's hearing is still in the normal range, or at least not bad enough to be considered a hearing loss disability. While the Veteran has expressed his belief that he currently has hearing loss related to his period of service, absent a showing of current disability, service connection cannot be granted. Although the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds set forth in 38 C.F.R. § 3.385 have been met. The competent evidence, consisting of audiology examinations, is to the effect that the Veteran does not currently have hearing loss as defined in 38 C.F.R. § 3.385. Because a current disability has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. There is no current competent evidence of hearing loss within the meaning of 38 C.F.R. § 3.385. The preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. Duties To Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA 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) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's status has been substantiated. In a July 2007 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Veteran was also provided with notice as to the disability rating and effective date elements of the claim in the July 2007 letter. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained all available records. There are no outstanding requests to obtain any private medical records for which the Veteran has identified and authorized VA to obtain on his behalf. The Veteran was also afforded a VA examination in February 2012 in conjunction with his claim for service connection. The results obtained and the opinion rendered by the examiner are sufficient in order to properly address the Veteran's claim. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through testimony at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs