Citation Nr: 1311987 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-17 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied service connection for the Veteran's bilateral hearing loss. The Veteran filed a notice of disagreement in September 2008, the RO issued a statement of the case (SOC) in March 2009, and a substantive appeal was received in May 2009. The Veteran requested, and was scheduled for, a Board hearing at the RO to take place in January 2010; however, that hearing was postponed until July 2010. The Veteran was unable to attend the July 2010 hearing, but submitted a statement in support of his claim instead and requested that his claims file be forwarded to the Board for adjudication. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. There are currently no pertinent records in the paperless file that are not also in the paper claims file. Based on the record, it appears that the Veteran seeks to reopen his claim for hypertension (see Veteran's July 2010 statement), but that this issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDING OF FACT The Veteran does not currently have hearing loss with the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz being 26 decibels or greater; or speech recognition scores using the Maryland CNC Test being less than 94 percent. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Veteran was advised in October 2007, prior to the initial unfavorable rating decision, of the evidence and information necessary to substantiate his service connection claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. As to VA's duty to assist, the Veteran's service treatment records (STRs), and available post-service private treatment records have been obtained and considered. The Veteran was afforded a VA examination in October 2008, and a medical opinion was obtained at that time. While the Veteran and his representative disagree with the examiner's conclusions, they do not argue, or otherwise point to, any reason that the examination is inadequate other than arguing that the VA examination was less personal and used "less up-to-date equipment". The board fidns no reason why factors such as the ones cited by the Veteran would make any difference with respect to the adequacy of the exam. The information in the examination report and other evidence of record is sufficient to decide the claim, particularly regarding the origin of the Veteran's bilateral hearing loss and any possible relationship between his alleged disability and his military service. In particular, the examiner considered the evidence of noise exposure in service, the evidence at separation from service, and the evidence of noise exposure and hearing loss after service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 by VA's 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. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system). 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. Here, the Veteran asserts that he has bilateral hearing loss due to his military service, arguing that it is the result of acoustic trauma related to his exposure to cannon and weapons fire while aboard the USS Stribling. In an October 2007 statement, the Veteran contends that he was a Boatswains Mate assigned to stay in the gun mount for days while the guns were fired. He asserts that "the sound from the guns was stunning," and that he was not afforded hearing protection. He claims that he has steadily noticed a decrease in his ability to hear and that he credits his military service for at least part of this problem. As a result, he believes that service connection is warranted. However, the Veteran's STRs do not reference any complaints or a diagnosis of hearing loss during service. Both the Veteran's July 1970 induction and July 1972 separation hearing examinations showed that his hearing was normal on whispered voice testing. The records do not show any other audiology findings. In support of his claim, the Veteran submitted a private audiology examination report from Karl W. Hattler, Ph.D, dated in September 2008. This record is the earliest available post-service medical evidence pertaining to the Veteran's claimed hearing loss. Dr. Hattler recorded the Veteran's audiology results and stated that the Veteran's type of hearing loss is often associated with exposure to weapons fire. However, even though Dr. Hattler suggests that the Veteran has hearing loss, the audiometry results recorded do not show that the Veteran's auditory thresholds demonstrated a bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. In particular, none of the Veteran's auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater. Similarly, the record does not show that at least three of the Veteran's auditory thresholds, at frequencies 500, 1000, 2000, 3000, or 4000 Hertz, are 26 decibels or greater. Lastly, there is no indication that the Veteran's speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition, the Veteran was also afforded a VA examination in October 2008. After reviewing the Veteran's claims file, taking a medical history from him, and conducting a hearing examination, the VA examiner opined that the Veteran had essentially normal hearing for both ears. In particular, audiometry revealed that the Veteran's auditory thresholds were 10, 15, 20, 20, 25 in the right ear and 15, 15, 20, 15, 25 in the left hear at frequencies 500, 1000, 2000, 3000, and 4000 Hertz, respectively. In addition, the examiner reported that the Veteran had speech recognition scores of 94 percent in the right ear and 96 percent in the left ear. Based on a review of the record, 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. Even though the Veteran's private physician provided a nexus opinion that the indicated that he has hearing loss, and that such hearing loss is often associated with exposure to weapons fire, the clinical findings do not demonstrate that the Veteran has a bilateral hearing loss disability under the law. 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 that a 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. However, 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 he may reopen his claim and the question of a nexus or link to service will be considered. In summary, 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. In concluding that this claim must be denied, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, since the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs