Citation Nr: 1308762	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  09-34 582	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel



INTRODUCTION

The Veteran had active duty service from November 2002 to November 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran's notice of disagreement was received in January 2008, a statement of the case was issued in July 2009 (and reissued in August 2009), and a substantive appeal was received in August 2009.  

The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered.  At present, there are no additional documents pertinent to this appeal in Virtual VA.


FINDING OF FACT

The Veteran does not have current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 (2012). 


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. 	Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

      A.	Duty to Notify 

After reviewing the claims folders, the Board finds that the Veteran has been notified of the applicable laws and regulations, which set forth the necessary criteria for the benefits currently sought.  In a June 2007 letter (prior to the adjudication on appeal), the Veteran was informed of the information and evidence necessary to warrant entitlement to service connection for bilateral hearing loss.  Moreover, the Veteran was advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held 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.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded.  Id. at 488.  The June 2007 VCAA letter fully complied with Dingess.  

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). 
      
      B.	Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  All available pertinent records, including service treatment records (STRs) and post-service treatment records, have been obtained.  The Veteran was afforded VA audiological examinations in July 2007 and November 2009.  The Board finds the examination reports to be adequate and that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claim, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein.  

II. 	Analysis

The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss.  

Applicable law provides that 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.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also 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 organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  An October 4, 1995, memorandum opinion VA's by the Under Secretary for Health held that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system, and therefore a presumptive disability.

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 Board has reviewed the claims file to include the June 2007 and November 2009 VA examination reports as well as the Veteran's STRs.  However, based on such review the Board is unable to find that service connection for bilateral hearing loss disability is warranted because there is no demonstrated bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385.

The Veteran's STRs show that upon entrance into the military audiometry on August 2002 examination revealed that puretone thresholds, in decibels, were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
10
5
0
5
0
5
LEFT
10
5
0
0
10
15

In November 2002, the Veteran had another audiometry test, which revealed that puretone thresholds were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
5
5
0
5
5
15
LEFT
15
0
0
0
5
20

In October 2004, the Veteran complained of a loss or change in hearing and submitted to two audiograms.  Audiometry from October 19, 2004 revealed that puretone thresholds were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
10
15
10
15
15
15
LEFT
20
10
5
5
5
20

Audiometry from the October 20, 2004 test revealed that puretone thresholds were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
10
10
0
5
0
10
LEFT
10
5
5
0
5
15

In June 2007, the Veteran was afforded a VA audiological examination related to her May 2007 claim for bilateral hearing loss.  Her puretone thresholds were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
15
20
10
25
25
X
LEFT
10
15
10
10
15
X

Speech recognition scores of 96% right ear and 98% left ear were reported.

On VA audiological examination in November 2009, the Veteran's puretone thresholds were:




HERTZ




500
1000
2000
3000
4000
6000
RIGHT
10
15
10
15
10
X
LEFT
10
15
10
10
10
X

Speech recognition scores of 96% right ear and 94% left ear were reported.

As the results show, neither the June 2007 or November 2009 VA examinations produced thresholds of 26 decibels or greater for at least three frequencies (i.e. 500, 1000, 2000, 3000, or 4000 Hertz).  Instead, the June 2007 VA examiner noted that the Veteran's hearing acuity was within normal limits and that her speech recognition was excellent in both ears.  Consequently, the audiometry results in the June 2007 and November 2009 VA examinations evidence that the Veteran's puretone thresholds do not meet the regulatory definition for bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385.  

In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board stresses to the Veteran that hearing loss disability for VA compensation purposes is defined by regulation.  38 C.F.R. § 3.385.  The Board is bound to apply VA regulations.  There is no evidence of record showing that the criteria of 38 C.F.R. § 3.385 have been met.  Accordingly, the Board finds that the Veteran does not have a current bilateral hearing loss disability for which service connection can be granted.  Should the Veteran's hearing acuity decrease in the future so that audiological examination shows that the provisions of 38 C.F.R. § 3.385 are met, then she may reopen her claim and the question of a nexus or link to service will be considered.  


ORDER

The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs