Citation Nr: 1322712	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-18 965	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Layton, Counsel







INTRODUCTION

The Veteran served on active duty from October 1971 to November 1973.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO).

In his July 2008 notice of disagreement, the Veteran appears to have raised the issue of entitlement to a left ear hearing loss disability; however, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has a hearing loss disability of the right ear as defined by VA regulations.


CONCLUSION OF LAW

The criteria for service connection for a right ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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) that the claimant is expected to provide. 

A VCAA letter dated in February 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Furthermore, this letter described how appropriate disability ratings and effective dates were assigned.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA medical records are in the file.  The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  The Veteran was provided a VA examination in May 2008 which addressed his claim for service connection for a right ear hearing loss disability.  The examiner conducted the appropriate diagnostic tests, and considered the Veteran's reported history.  The Board finds this examination report and opinion to be thorough and complete.  Therefore, the Board finds this examination report and opinion sufficient upon which to base a decision with regard to this service connection claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service.  38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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, or 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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran's service records reflect that his military occupational specialty was 16R20 (vulcan crewman).  On September 1971 service entrance physical examination, a clinical evaluation of the Veteran's ears was normal.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
5
5
5
5

On June 1973 service separation physical examination, a clinical evaluation of the Veteran's ears was normal, although the examiner indicated later in the report that the Veteran had a high frequency neurosensory hearing loss.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
25
15
15
--
5

In April 2008, the Veteran stated that while he was on active duty, he served with the Air Defense Artillery.  He described his exposure to bursts of cannon fire during training and while at the firing range.  He recalled using ear plugs which were inadequate for hearing protection.  He said that people commented on his hearing loss while he was on active duty as well as after his service.

On VA audiological examination in May 2008, it was noted that the Veteran served in the Air Defense Artillery.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
20
10
15
35

The speech discrimination score was 94 percent for the right ear.  The examiner stated that the Veteran reported that his hearing loss did not significantly affect his ability to communicate effectively in employment situations and daily activities.  The examiner commented that an electronic hearing test conducted at the time of the Veteran's discharge from active duty showed that the Veteran had hearing sensitivity within normal limits for the frequency range from 500 Hertz to 4000 Hertz and a moderate loss of hearing at 6000 Hertz.  The examiner opined that the Veteran did not have a disabling hearing loss at the time of his discharge.  Based on the testing results, it was the examiner's opinion that any right ear hearing loss disability was less likely as not caused by or a result of noise exposure while the Veteran was on active duty.

In his July 2008 notice of disagreement, the Veteran stated that fellow employees and friends had noticed his non-responsiveness during conversations.  The Veteran reiterated that his separation examination report shows that he had a high frequency hearing loss.

Concerning the Veteran's right ear, the Board notes that none of the interpreted pure tone thresholds as recorded by any of the audiologists of record meet the numerical standards enumerated by 38 C.F.R. § 3.385 (2012).  As such, the Veteran does not meet the threshold requirement in establishing service connection, which is a diagnosis of a qualifying hearing loss disability in the right ear for VA benefit purposes.  Without a diagnosis of a current hearing loss disability in the right ear that meets the standards of 38 C.F.R. § 3.385, service connection cannot be granted for hearing loss, right ear.  

In reaching this conclusion, the Board acknowledges that the Veteran is competent to report difficulty hearing in his right ear.  However, he is not competent to state that his right ear pure tone thresholds or speech recognition scores arise to levels sufficient to warrant a disability for VA purposes under 39 C.F.R. § 3.385.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Accordingly, the Board has placed greater probative value on the May 2008 VA examination report that does not support a finding of a right ear hearing loss disability for VA purposes.  

As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a right ear hearing loss disability must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for a right ear hearing loss disability is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs