Citation Nr: 1318578	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  08-38 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1987 to July 2007.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which, in pertinent part, denied service connection for bilateral hearing loss.  This claim was developed as part of the Benefits Delivery at Discharge (BDD) program.  The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA.

During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Roanoke, Virginia which now has jurisdiction over the claim on appeal.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  


FINDINGS OF FACT

1.  All relevant evidence necessary to decide the Veteran's appeal has been obtained.

2.  The Veteran does not have a currently diagnosed bilateral hearing loss disability for VA purposes.  

3.  Bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Court has held that "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 a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection can also be established through application of statutory presumptions.  Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309.  Other organic diseases of the nervous system is listed as a "chronic disease" and includes sensorineural hearing loss.  See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995).

Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

On a May 2007 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran reported that bilateral hearing loss began during service in March 2007.  In a June 2008 statement, the Veteran reported that during his last several in-service flight physicals he was required to participate in follow-up hearing tests due to the losses indicated in the evaluations and doctors frequently expressed their clinical concerns for his hearing.  The Veteran further noted the complaints from family members about his need for the television volume too loud, effects at work, and regular struggles to adequately hear and understand nearby communications.  He further noted in a December 2008 substantive appeal, via a VA Form 9, that based on the occupation he held while in service, any and all doubt should be resolved in his favor.

As will be discussed below, the Board finds the evidence of record does not demonstrate that bilateral hearing loss for VA purposes manifested to a compensable degree within one year of separation from active service.  Therefore, service connection for bilateral hearing loss, on a presumptive basis as a chronic disease, is not available in this case.  See 38 C.F.R. §§ 3.307, 3.309(a). 

The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Thus, the Board considers whether service connection is warranted for bilateral hearing loss on a direct basis.  

A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012).  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).

The weight of the evidence demonstrates the Veteran does not have a currently diagnosed bilateral hearing loss disability for VA purposes.  

On VA examination in June 2007, the Veteran's pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15 
25 
30
LEFT
15
10
14
25 
25

The speech recognition scores, performed with the Maryland CNC word list, were 100 percent in the right ear and 98 percent in the left ear.  The examiner noted that pure tone tests showed hearing within normal limits bilaterally with the exceptions of a mild high frequency sensorineural loss at 4000 Hertz in the right ear.  It was concluded the Veteran had normal hearing in the left ear and the threshold levels in the right ear did not meet VA criteria for disability.  The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by 25 and 30 decibels at the 3000 and 4000 Hertz ranges, respectively, in the right ear and by 20 decibels at the 3000 and 4000 Hertz ranges in the left ear.  See Hensley, 5 Vet. App. at 157.  Nonetheless, the criteria for a bilateral hearing loss disability for VA purposes are not met to show the manifestation of the disability at any time since separation from service.  

On VA QTC audiological examination in March 2012, the Veteran's pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5 
20 
25
LEFT
15
5
0
15 
15

The speech recognition scores, performed with the Maryland CNC word list, were 100 percent in the right and left ears.  The examiner noted these test results are valid for rating purposes and normal hearing in the right and left ears.  The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by 25 decibels at the 4000 Hertz range in the right ear.  See Hensley, 5 Vet. App. at 157.  Again, however, the criteria for a bilateral hearing loss disability for VA purposes are not met to show the manifestation of the disability at any time since separation from service.  

The Board also acknowledges that a June 2007 VA outpatient audiology treatment record notes "Compensation and Pension (C&P) audio completed.  High Frequency (HF) sensorineural hearing loss (SNHL) right ear . . . ."  However, as discussed above, the pure tone thresholds or Maryland CNC results from the June 2007 VA examination did not meet the criteria to establish hearing loss for VA purposes in either ear.  Moreover, the Veteran acknowledged in the December 2008 substantive appeal that he understands that according to VA standards he does not meet the requirement for hearing loss at this time.

Simply stated, while the Board fully understands the Veteran's concerns, and while the Veteran has some loss of hearing, he still has hearing within a range of normal that it cannot be said that he has "hearing loss" for VA purposes at this time.

Based on the evidence of record, the weight of the competent evidence demonstrates the Veteran does not have a current diagnosis of bilateral hearing loss for VA purposes.  As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for bilateral hearing loss on a direct basis.  

The Veteran was informed in a May 2007 notice letter that he must have evidence of a current disability for his claim on appeal.  He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence.  Since the weight of the competent medical evidence is against the conclusion that the Veteran meets the criteria for a diagnosis of bilateral hearing loss for VA purposes, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted.  See Brammer, 3 Vet. App. at 225.

For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim of service connection for bilateral hearing loss, and this claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

The Veteran is encouraged to reapply when (or if) his hearing worsens, as his exposure to load noise in service is conceded. 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by a May 2007 Notice Acknowledgement and Response letter as part of the BDD Program.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, a December 2007 letter included the type of evidence necessary to establish a disability rating and effective date.  Although this notice was not issued and dated before the December 2007 rating decision on appeal, the Veteran has not been prejudiced, as the claim was readjudicated in a September 2008 statement of the case (SOC).  See Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, a June 2007 VA audiological examination and a June 2007 VA audiological examination through QTC Medical Services.  The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal.  The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

ORDER

Service connection for bilateral hearing loss is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs