Citation Nr: 1317841 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-31 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from February 1969 to February 1971. He served in the Republic of South Vietnam. His personal awards and decorations include the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from August 2007 and December 2007 decisions of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2007, the RO denied service connection for bilateral hearing loss and tinnitus. In December 2007, the RO denied service connection for posttraumatic stress disorder (PTSD). In February 2011, the Board remanded the appeals for additional development. After gathering additional information as instructed by the Board's Remand, the Appeals Management Center (AMC), in Washington, DC, in a May 2012 decision granted entitlement to service connection for PTSD and assigned a 30 percent disability rating. Although the appellant later submitted additional evidence in regard to his claim for PTSD, the AMC re-adjudicated the initial rating in a September 2012 rating decision and granted an initial 50 percent disability rating. The AMC also granted service connection for bilateral tinnitus and right-sided hearing loss in the September 2012 rating action. Where a claim for service connection is granted during the pendency of an appeal, a separate notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The appellant did not file a NOD in regard to the May or September 2012 rating actions. Accordingly, since the claims regarding PTSD, tinnitus, and right ear hearing loss have been granted, they are not before the Board. The only issue remaining on appeal at the time the appeal was re-certified to the Board was the issue of entitlement to service connection for left ear hearing loss. Following a further review of the claims folder, the Board, in December 2012, remanded the claim to the RO for the purpose of providing a videoconference hearing before the Board. The appellant was notified of when the hearing would occur and he subsequently cancelled that hearing. The claim has since been returned to the Board for review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT VA audiological test results do not show puretone thresholds, at 500, 1000, 2000, 3000, and 4000 Hertz, at 40 decibels or greater; or auditory thresholds for at least three of the frequencies at 26 decibels or greater; or speech recognition scores using the Maryland CNC Test at less than 94 percent in the left ear. CONCLUSION OF LAW A current hearing loss disability of the left ear for VA benefit purposes was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or evidence submitted on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. The record indicates that the appellant was provided notice in a letter sent to him from the RO in November 2006. The letter informed the appellant that VA would assist him in obtaining any documents that it was made aware thereof that would assist in the decision-making process of the claim. He was further told that he could proffer any documents or statements in support of his claim, and that all items would be considered when a decision on the merits of his claim was made. He was also informed how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All that the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated by, and those other records that VA was made aware thereof. Given the foregoing, the Board finds that VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the Board did seek to obtain such an opinion concerning the existence and etiology of any found hearing loss. The Board would note that this last occurred in March 2011. The report involved a review of the claims folder and the appellant's available medical records, and the results of an actual examination of the appellant. Therefore, the Board finds that this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance that reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the appellant is represented in this appeal and over the course of the appeal, the accredited representative has submitted argument on behalf of the appellant. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Moreover, the appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Service Connection - Hearing Loss The appellant has come before VA asking that service connection be granted for hearing loss of the left ear. Hearing loss of the right ear has already been found to be related to or caused by service, and as such, service connection has been granted. To support his claim, the appellant has submitted written statements and he has undergone testing through the VA regional office. A. Governing Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). 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. See 38 C.F.R. § 3.303(b) (2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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." When the disease identity is established, there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2012); see also Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court stated that in Savage it had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to the first requirement of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the service member's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board would add that the evidence on file indicates that the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of a veteran. Nevertheless, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not establish a presumption of service connection but ease a combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the provisions of section 1154(b) apply only to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. B. Factual Background and Analysis Turning to the merits of the claim, a review of the appellant's service treatment records does not show evidence of hearing loss as defined by VA regulations during his active duty service. These records reveal that the appellant underwent an audiological examination in February 1971, prior to his discharge. A whispered voice test was accomplished which revealed hearing acuity of 15/15. The Board notes however that the whispered voice test is not an assessment of hearing acuity at the time of discharge consistent with 38 C.F.R. § 3.385 (2012). No audiometric test results were reported during the February 1971 separation examination. In conjunction with his claim for benefits, the appellant underwent a VA audiological examination in Mach 2011. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 20 25 40 LEFT 15 35 15 15 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The appellant's left ear hearing was categorized as being within normal limits. The audiometric findings with respect to the left ear do not show a hearing disability as defined by VA regulations. See 38 C.F.R. § 3.385 (2012). Given the above evidence, the Board finds that service connection is not warranted for hearing loss affecting the left ear. Pursuant to 38 C.F.R. § 3.385 (2012), the appellant has not been measured to have impaired hearing because the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is not 40 decibels or greater; or the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater; or the speech recognition scores using the Maryland CNC Test are not less than 94 percent. The appellant has not submitted any competent clinical evidence that contradicts the findings from the March 2011 VA examination or objective evidence showing a current left ear hearing loss disability. As the medical evidence does not indicate current a current left ear hearing loss disability, the Board does not even reach the question of whether the claimed disorder is related to the Veteran's military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim."). Thus, as the appellant has not demonstrated a current diagnosis of hearing loss of the left ear conforming to the requirements of 38 C.F.R. § 3.385 (2012), service connection must regrettably be denied. The Board is cognizant of the appellant's receipt of a Vietnam Combat Medal as well as the provisions of 38 U.S.C.A. § 1154(b). While the provisions of section 1154(b) are generally applicable in this case, they are only relevant to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. See Clyburn v. West, 12 Vet. App. 296, 303 (1999). However, in this case, since evidence of bilateral hearing loss of the left ear as recognized by VA regulation is not present, no further analysis is needed. The only evidence linking the claimed left ear hearing loss to his military service is the appellant's own assertions. The Board does not question the appellant's sincerity in his belief that service connection is warranted for hearing loss in the left ear. While he is certainly competent to relate events in service and after service, and to describe the extent of any current symptomatology, there is no evidence that he possess the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially it is beyond the appellant's competency to diagnose himself with left ear hearing loss or to link the claimed disorder to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For all the foregoing reasons, the claim for service connection for hearing loss in the left ear must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hearing loss of the left ear is denied. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs