Citation Nr: 1303449 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-11 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. The Veteran served as an infantryman in the Republic of Vietnam and is in receipt of a Combat Infantryman Badge. 2. The audiograms performed during service reflect an in-service decrease in the Veteran's right ear hearing acuity. 3. The Veteran has a current right ear hearing disability. 4. The Veteran does not have a current left ear hearing disability, as defined by VA. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). With regard to the Veteran's right ear hearing loss service connection claim, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With regard to the Veteran's left ear hearing loss, a February 2009 statement of the case partially satisfied the duty to notify provisions. The statement advised the Veteran of the criteria for establishing service connection, the evidence he was responsible for obtaining, and the evidence VA would obtain on his behalf. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). The claim was subsequently readjudicated in a January 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was not specifically advised of the methods by which VA determines disability ratings and effective dates. No effective date or disability rating will be assigned given the denial of this claim; therefore, such notice is not prejudicial. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA audiological examinations were conducted and related opinions were obtained in April 2007 and December 2011. The Veteran has not argued, and the record does not reflect, that these examinations or opinions are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The VA audiological examination reports reflect that the examiners conducted audiometric testing that failed to reveal a left ear hearing loss in the frequency ranges considered for VA compensation benefit purposes. Given the lack of a diagnosed left ear hearing loss, no related medical opinion was warranted; thus, the adequacy of any such opinion is moot. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Dingess/Hartman, 19 Vet. App. at 486. Service Connection The Veteran reports that he was exposed to acoustic trauma during service while serving as a combat infantryman in the Republic of Vietnam, and he contends that he developed hearing loss as a result of this in-service exposure. He correlates his current right ear hearing loss to his right-handed operation of firearms during service. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). A hearing loss disability is defined by regulation. For 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; when the auditory thresholds for at least three of the above frequencies 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. Left Ear Hearing Loss VA audiological testing performed during VA examinations conducted in April 2007 and December 2011 failed to reveal left ear hearing loss, as defined by VA regulations. 38 C.F.R. § 3.385. The Veteran's left ear hearing acuity was characterized as normal in a June 2009 VA audiology consultation record. The Veteran is competent to report experiencing his perception of a hearing loss. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). He is not competent, however, to diagnose a hearing loss, as diagnosing this disability requires diagnostic testing performed by a trained medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). The Veteran is not currently-diagnosed with left ear hearing loss. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of proof of a present disability, there can be no valid claim). The preponderance of the evidence is against the claim for left ear hearing loss; there is no doubt to be resolved; and service connection is not warranted. Right Ear Hearing Loss The Veteran's exposure to acoustic trauma during his service as an infantryman in the Republic of Vietnam is presumed. See 38 C.F.R. § 3.304(d). The Veteran's service treatment records reflect that during his January 1966 pre-induction examination, auditory thresholds were recorded as 5 decibels at 500 and 4000 Hertz and 0 decibels at 1000, 2000, and 3000 Hertz. In November 1966, the Veteran's right ear hearing acuity had decreased to 5 decibels at 1000 and 2000 Hertz and 10 decibels at 4000 Hertz. In an undated periodic examination performed during active service, the Veteran's right ear hearing acuity was recorded as 30 decibels at 500 and 4000 Hertz and 20 decibels at 1000 and 2000 Hertz. On separation from service, the Veteran's right ear hearing acuity was recorded as 10 decibels at 500, 1000, and 4000 Hertz, and 5 decibels at 2000 Hertz. In March and April 1996, the Veteran sought treatment for right ear hearing loss. At this time, he stated that he had first noticed his hearing loss recently, but was unsure of how long he had been experiencing a right ear hearing loss. During VA audiological examinations conducted in April 2007 and December 2011, the Veteran reported that he was unsure of the onset of his current hearing loss. He reported that during his post-service career as a Metrorail administrator, hearing protection was infrequently necessary, but that he routinely used hearing protection when required. VA examiners diagnosed the Veteran with right ear hearing loss. The Veteran was exposed to acoustic trauma during service, and a comparison between the results of pre-service and separation audiological testing reflects that the Veteran's right ear hearing acuity decreased during service. The Veteran is currently-diagnosed with right ear hearing loss, which is consistent with his reports of his right-handed operation of firearms during service. Service connection for right ear hearing loss is warranted. ORDER Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs