Citation Nr: 1320490 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-07 126A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to August 1994, and from October 2004 to January 2006. He had additional service in the National Guard. The appeal came before the Board of Veterans' Appeals (Board) from November 2008 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In connection with the appeal the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2012. A transcript of this hearing is of record. When the case was before the Board in November 2012, it was remanded in part and decided in part. While the case was in remand status, the issue of entitlement to service connection for a left knee disability was resolved by a March 2013 rating decision granting service connection for left knee disability. FINDING OF FACT No hearing loss disability in either ear has been present at any time during the pendency of this claim. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in April 2008, prior to the RO's initial adjudication of the claim. In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2012) requires that the adjudicator who chairs a hearing fulfill two duties. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2012 videoconference hearing conducted in this case, the undersigned Veterans Law Judge effectively outlined the issues then on appeal and explained to the Veteran that his hearing loss claim had been denied because the evidence failed to show that he had hearing loss disability. He was invited to submit evidence showing that he has hearing loss disability. Moreover, the record was held open for the purpose of affording the Veteran additional time to submit evidence in support of his claim. The record also reflects that all pertinent records identified by the Veteran have been obtained and that the Veteran was provided appropriate VA examinations in April 2006 and February 2013. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is also satisfied that the originating agency has complied with VA's duty to assist the Veteran in the development of the facts pertinent to this claim. II. Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran contends that service connection is warranted for bilateral hearing loss because it was caused by his exposure to excessive noise in service. The Veteran's service treatment and examination records reflect some variance in hearing acuity. However, service records do not show that the Veteran was found to have sufficient hearing impairment in either ear to qualify as a disability. The Veteran was afforded a VA audiology examination in April 2006. As the Board noted in the November 2012 remand, this examination showed that the Veteran did not have sufficient hearing impairment to qualify as a disability under 38 C.F.R. § 3.385. However, the Veteran testified at his June 2012 hearing that his bilateral hearing loss had worsened since that time. In the November 2012 remand, the Board accordingly directed that the Veteran be afforded VA examination. A VA audiology examination was performed in February 2013. For these two examinations, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ Exam Date Ear 500 1000 2000 3000 4000 Average 1000 - 4000 April RIGHT 25 20 20 5 15 15 2006 LEFT 25 20 15 10 15 15 February RIGHT 20 25 25 15 25 22 2013 LEFT 20 25 25 20 20 22 In April 2006, speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The April 2006 examiner found hearing loss within normal limits except mild low frequency conductive hearing loss. In February 2013, speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The February 2013 examiner found normal hearing in each ear. The examiner noted the Veteran's reports of considerable noise exposure in service both in work in the motor pool and in combat settings, with exposure to several IEDs. However, the examiner also noted that hearing evaluations in service were consistent with the current hearing examination in showing normal hearing bilaterally. The examiner added that a recent hearing loss examination in August 2012 similarly revealed normal hearing bilaterally. The findings of these examinations are sufficiently consistent with each other and with the balance of the evidence of record, including particularly both service and post-service findings, as reviewed by the February 2013 examiner, to support their validity for purposes of the Board's adjudication. Both the April 2006 and February 20013 examinations and the balance of the audiology findings of record reflect that the Veteran does not have hearing loss disability in either ear per VA regulation. The examiner at each of these examinations noted that testing revealed normal hearing levels in each ear with speech recognition test findings in each ear consistent with those audiometric results. The examiners also noted that the Veteran had hearing within normal limits in each ear, and excellent speech recognition in each ear. The Board has considered the Veteran's contentions but his statements are of lesser probative value than the reports of audiological evaluations prepared by skilled examiners showing that he does not have sufficient hearing impairment in either ear to qualify as a disability for VA compensation purposes. Accordingly, the claim must be denied. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs