Citation Nr: 1304803	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  09-18 771A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from October 1987 through October 1991.

This matter comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which among other issues, declined to reopen the Veteran's claim for service connection for bilateral hearing loss.  A timely Notice of Disagreement (NOD) was received from the Veteran in July 2008.  After a Statement of the Case (SOC) was issued in May 2009, the Veteran perfected his appeal in June 2009, via VA Form 9 substantive appeal.

The substantive appeal reflects that the Veteran requested that this matter be scheduled for a Board hearing.  Accordingly, a Travel Board hearing was scheduled to take place at the Chicago RO in April 2012.  Prior to the hearing, the Veteran advised that he wished to withdraw his hearing request.  Neither he nor his representative has made a renewed request for a new Board hearing.

In July 2012, the Board reopened the Veteran's claim for service connection for bilateral hearing loss, but remanded the service connection issue for further development, to include scheduling a VA audiology examination to determine the nature, etiology, and severity of the Veteran's claimed hearing loss.  The Board is satisfied that the directed development action has been performed, and is prepared to proceed with its de novo consideration of this matter.

In his NOD, the Veteran also initiated an appeal as to the issues of service connection for headaches and tinnitus.  He did not, however, perfect his appeal as to his claim concerning headaches by filing a substantive appeal.  Regarding his claim concerning tinnitus, the Veteran's appeal as to that issue was perfected by the June 2009 substantive appeal.  That claim was subsequently granted in full by the Board in July 2012.  Accordingly, neither issue is presently before the Board on appeal.


FINDINGS OF FACT

1.  The Veteran did not report for a VA audiological examination that was scheduled to take place in August 2012, and, has not provided any cause for his failure to report for the examination.

2.  The evidence does not show that the Veteran has a current 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, 3.655 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 January 2008 letter notified the Veteran of the information and evidence needed to substantiate his claim for service connection for bilateral hearing loss.  Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's March 2008 rating decision.  Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied.

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 record indicates that a Social Security Administration finding determined that the Veteran has been disabled since March 1994 and that he has been receiving social security disability benefits.  When the evidence indicates that the Veteran is in receipt of social security disability payments, VA's duty to assist requires that it seek the Social Security Administration's disability determination and the medical records underlying it only when these records are relevant to the claim at issue.  See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010).  In this instance, however, there is no indication that the Veteran was seeking social security disability benefits in connection with his claimed hearing loss, which is at issue here; nor is there any indication that the award of social security disability benefits was based upon a hearing loss disability.  Neither the Veteran nor his representative has asserted that the Veteran's social security file may contain any additional evidence that is relevant to his claimed hearing loss.  Moreover, and as discussed below, there is no evidence anywhere in the record that the Veteran has received any medical treatment or evaluation for his claimed hearing loss; much less, evidence that he has received a hearing loss diagnosis.  Overall, there is simply no indication in the record that the Veteran's social security records are potentially relevant to the issue on appeal.  In the absence of any such indication, pursuit of the Veteran's social security records in this case would merely impose unnecessary burdens on VA's adjudication system, with no benefit flowing to the Veteran, and moreover, cause additional delay in this appeal.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)) (remand is not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the veteran).

As noted above, this claim was previously remanded, in part, to afford the Veteran a VA audiological examination to explore his claimed hearing loss.  Although such an examination was scheduled to take place in August 2012, the Veteran did not report for the scheduled examination and did not provide any cause for his failure to report.  In that regard, VA apparently attempted to contact the Veteran by telephone on two occasions (and left voicemail messages for the Veteran on each occasion); however, did not receive a return call or any response from the Veteran.  Under the circumstances, the Board is not obliged to arrange a new VA examination and will simply adjudicate the Veteran's claim based upon the evidence currently of record.
 
Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

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 a July 2007 statement, the Veteran alleged that he sustained acoustic trauma during service from jet engine noise.  He asserted further that he began experiencing a loss of his "high pitch hearing tones" during service.  Although the Veteran's DD Form 214 does not clearly delineate the Veteran's military occupational specialty (MOS), it does appear to indicate that the Veteran received in-service aircraft training.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the character of the Veteran's active duty service is consistent with acoustic trauma from jet engine noise.

Audiometric testing performed throughout the Veteran's active duty service indicates that the Veteran experienced some audiometric shifting over the course of his active duty service.  A September 1987 enlistment examination report reflects that the Veteran did not report a pre-service history of hearing loss.  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
10
5
15
10
25
LEFT
20
5
0
5
5

An audiogram performed the following month, in October 1987, revealed the following pure tone thresholds:




HERTZ



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


Audiometric testing performed in August 1988 indicated pure tone thresholds that were essentially consistent with those noted during prior in-service testing:




HERTZ



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

Audiometric testing in February 1990 revealed the following pure tone thresholds:




HERTZ



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

Audiometric testing in April 1991 also did not reveal any significant change in the Veteran's hearing:




HERTZ



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

Audiometric testing performed in October 1991 indicated audiometric shifts in both ears:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
20
0
10
LEFT
25
20
10
10
10

Two days later, the Veteran's hearing was re-evaluated.  At that time, the Veteran continued to show audiometric shifts (relative to prior studies performed through April 1991), albeit smaller ones than those shown during the audiometric testing performed two days earlier:




HERTZ



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

Interestingly, an accompanying October 1991 service treatment note indicates that this audiometric data was interpreted as showing "no shift now". 

Despite the audiometric shift shown in the service treatment records, and despite the Veteran's July 2007 assertion that he has experienced ongoing hearing loss since his active duty service, the post-service private and VA treatment records do not indicate any subjective complaints of hearing loss.  Similarly, there is no evidence that the Veteran has been diagnosed with hearing loss, nor is there any indicating that the Veteran has received any audiological evaluation or audiometric testing of his hearing.  Although limited social security records in the claims file reflect that the Veteran has been receiving social security disability benefits, there is no indication that such benefits were based upon a hearing loss disability, nor is there any indication that hearing loss was considered by the Social Security Administration as a possible basis for disability benefits.  Overall, there is no evidence anywhere in the record that the Veteran has a current hearing loss disability, as defined under 38 C.F.R. § 3.385.

As noted above, pursuant to the Board's July 2012 remand, the Veteran was arranged to undergo a VA audiological examination in August 2012.  He did not report for the examination and no cause has been given for his failure to report.  The Board notes that when a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(a), (b).

To the extent that the Veteran himself believes that he has a bilateral hearing loss disability as a result of active service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing or observing noise exposure and difficulty hearing and ringing in his ears).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran is not competent, however, to determine that a perceived loss of hearing acuity or loud noises experienced in service or at any time after service was of a chronic nature to which a current hearing loss disability may be attributed.  Likewise, the Veteran is not competent to render an opinion as to whether his level of hearing impairment is sufficient to meet the regulatory criteria for a hearing loss disability for VA purposes.  Although the Veteran contends that his bilateral hearing loss disability related to his service, as a layman he is not competent to offer opinions on medical diagnosis and causation or offer an opinion that his bilateral hearing impairment rises to a disability for VA purposes.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

In view of the Veteran's failure to report, without cause, to the August 2012 VA audiological examination, and in the absence of any 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 disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs