Citation Nr: 1304121	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  07-32 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from June 1984 through May 2005.

This matter comes to the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Original jurisdiction over this matter was subsequently transferred to the RO in Atlanta, Georgia.  A timely Notice of Disagreement (NOD) was received from the Veteran in March 2006.  After a Statement of the Case (SOC) was issued in June 2006, the Veteran perfected his appeal in July 2006, via VA Form 9 substantive appeal.

The Veteran testified during an April 2010 Board hearing that was held before the undersigned Veterans Law Judge (VLJ).  A transcript of those proceedings is associated with the record.

The Veteran's claim for service connection  for bilateral hearing loss was previously remanded by the Board in July 2010 for further development, to include efforts to obtain more recent treatment records pertaining to the Veteran's claimed hearing loss.  After the Appeals Management Center (AMC) undertook efforts to perform that development action, the matter was returned to the Board.  In June 2012, the Board remanded the matter again for still further development, to include efforts to obtain the report of a purported 2009 VA audiological examination report and to afford the Veteran a new VA audiological examination.  The Board is satisfied that the directed development has been performed and is prepared to proceed with its de novo consideration of the issue on appeal.

The Board also notes that the Veteran's appeal also initially included the issues of entitlement to service connection for pneumonia, dehydration, headaches, an acquired psychiatric disorder, left ribcage scar, bilateral ankle sprains, right knee disorder, spine disorder, and left hip disorder.  During the April 2010 Board hearing, the Veteran withdrew his claims for service connection for pneumonia, dehydration, and left ribcage scar.  In July 2010, the Board granted service connection for the Veteran's spine disorder, left hip disorder, and right knee disorder.  In a March 2012 rating decision, the AMC granted service connection for right and left ankle sprains.  In June 2012, the Board granted service connection for major depressive disorder but denied service connection for migraine headaches.  Accordingly, those issues are not presently before the Board on appeal.


FINDING OF FACT

The Veteran does not have a hearing loss disability in either ear.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties 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. 2011) and 38 C.F.R.  §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), 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; and (3) that the claimant is expected to provide.  

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

A pre-rating September 2005 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for bilateral hearing loss.  After affording the Veteran reasonable opportunity to respond, his claims were adjudicated in the RO's February 2006 rating decision.

The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates (in the event that a claim for service connection is granted).  However, the failure to provide such notice in this case is not prejudicial to the Veteran.  Since the Board here denies the Veteran's service connection claim, neither a disability rating or an effective date is to be assigned.  As such, there is no possibility of prejudice to the Veteran due to VA's failure to provide the notice required by Dingess.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  The Veteran's service treatment records, claims submissions, and VA treatment records have been associated with the record.  The Board notes that this claim was previously remanded, in part, to obtain the report of a September 2009 audiological consultation.  This record has been obtained and associated with the Veteran's Virtual VA file, and was reviewed and considered by the agency of original jurisdiction in the December 2012 Supplemental Statement of the Case.  The Veteran was also afforded VA audiological examinations in September 2005 and August 2012.  These examinations, along with the other evidence of record, are fully adequate for the purposes of determining whether the Veteran has a current bilateral hearing loss disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).
 
Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  Savage, 10 Vet. App. at 495-97.  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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

Where service connection for hearing loss is at issue, hearing loss must be of a particular level of severity in order to be considered a disability.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In his claims submissions, the Veteran asserts generally that he is entitled to service connection for bilateral hearing loss.  During his April 2010 hearing, he testified that he sustained acoustic trauma during service from warehouse noise, heavy equipment and machinery, and discharging gunfire.  He stated that he performed duties in a mechanic shop for heavy equipment, a logistic warehouse, and also served approximately four months as a rifle range instructor.  He recalled that he was provided hearing protection during his active duty, but that he did not always wear it because it affected his ability to hear orders and instructions.  He testified that he first noticed his hearing loss sometime during the 1990's and that it has been gradually worsening since that time.

Despite the Veteran's allegations, the service treatment records and post-service treatment records show that the Veteran has never had a hearing loss disability, as defined under 38 C.F.R. § 3.385.  In that regard, repeated audiometric testing performed over the course of the Veteran's active duty service reflect hearing that was within normal limits.

A June 1983 enlistment examination report reflects that a clinical examination of the ears was normal.  Audiometric testing performed at that time revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
5
5
LEFT
10
5
5
5
5

Audiometric testing performed in September 1984 revealed the following pure tones:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
10
10
LEFT
0
0
10
10
10

A repeat clinical examination performed in November 1985 also revealed that the Veteran's ears were normal.  Audiometric testing revealed pure tone thresholds that continued to be within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
5
5
LEFT
5
5
5
10
10



Audiometric testing performed in January 1992 indicated ongoing normal hearing:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
15
10
LEFT
-5
0
5
5
0

Audiometry performed in July 1993 revealed that the Veteran's hearing continued to be within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
0
LEFT
15
5
0
0
-5

The Veteran's ears were clinically normal during a physical examination performed in August 1994.  Audiometric testing also revealed hearing that was within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
15
5
LEFT
0
5
5
5
10

An August 1997 physical also revealed clinically normal ears.  Once again, audiometric testing revealed normal hearing:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
0
5
5
LEFT
10
5
5
5
5

Audiometric testing performed in October 2003 revealed normal hearing:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
10
20
10
LEFT
-5
0
5
5
5

In addition to the foregoing, the Veteran expressly denied having any history of hearing loss in Reports of Medical History completed by him in June 1983, August 1994, August 1997, October 2003, and March 2005.  During a December 2003 pre-surgical examination and screening performed prior to a fistulotomy performed at Kennestone Hospital, the Veteran once again denied being hard of hearing.

Post-service VA treatment records dated through August 2012 show that the Veteran received treatment for hearing loss on one occasion, in September 2009.  Although specific audiometric results are not reported in the record, the record states that audiometric testing performed at that time revealed pure tone thresholds that were within normal limits.  Speech discrimination testing revealed speech recognition ability of 96 percent in both ears.

Similarly, audiometric testing performed during VA examinations performed in September 2005 and August 2012 also revealed normal hearing.  During the September 2005 examination, the Veteran's speech recognition ability was 100 percent in both ears.  Demonstrated pure tone thresholds were as follow:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
25
15
LEFT
10
10
15
15
15


Speech discrimination testing performed during the August 2012 VA examination also revealed speech recognition ability of 100 percent in both ears.  Audiometric testing performed at that time revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
20
15
LEFT
5
10
15
20
15

Based upon the audiological findings from the September 2005 and August 2012 VA examinations, both examiners concluded that the Veteran's hearing was normal.

During an October 2005 general VA examination, the Veteran reported that he had received an in-service audiology examination that was reportedly abnormal.  Similarly, he testified during his Board hearing that he was afforded a VA audio examination sometime during 2009 that purportedly revealed abnormal hearing.  As discussed above, however, there is no evidence of the onset of a hearing loss disability as defined by VA regulations either during or since service, to include a September 2009 VA audiological consultation wherein his hearing was specifically noted to be "normal" on audiometric testing.

While the Board is sympathetic to the Veteran's assertions and has considered his consistent reports of hearing difficulties, in the absence of any competent  evidence showing that the Veteran has a current hearing loss disability as defined by VA regulations, the Veteran's claim for service connection  for bilateral hearing loss must be denied.  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).



ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs