Citation Nr: 1323689 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-47 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from September 1986 to August 1990, and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Oakland, California. FINDING OF FACT A current bilateral hearing loss disability for VA rating purposes has not been demonstrated. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. 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. As it relates to the claim for service connection for bilateral hearing loss, the RO, in a September 2007 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The September 2007 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. As it relates to the duty to assist, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment records, a VA examination report, and lay evidence. No additional pertinent evidence has been identified by the claimant. The Veteran was afforded a VA examination in February 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be adequate for rating purposes. The examination report provided a history supplied by the Veteran and detailed examination results, provided sufficient information to properly address the Veteran's claim, specifically audiometric test scores and speech recognition test scores necessary for determining whether there is current hearing loss disability according to 38 C.F.R. § 3.385, and also provided an opinion as to the etiology of the Veteran's hearing loss. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection for Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss is due to noise exposure during service. He has reported in-service noise exposure from infantry/mortar platoon duties, to include exposure to mortars, artillery, engines, and track vehicles. The Veteran reported that he did infantry work for approximately 3.5 years while stationed in Germany, that while in a mortar platoon he was exposed to thousands of mortar blasts from 120 MM mortars, and that sometimes they wore hearing protection and sometimes they did not. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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) In this case the Veteran has been diagnosed with sensorineural hearing loss. The disability is a "chronic disease" listed under 38 C.F.R. § 3.309(a) as an other organic disease of the nervous system; therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current bilateral hearing loss disability for VA rating purposes, and has not had such disability at any time prior to or during this claim. A review of the Veteran's service treatment records reveals that at the time of a May 1986 enlistment examination, testing revealed pure tone thresholds, in decibels, of 0, 0, 10, 5, and 5 for the left ear; and 0, 0, 5, 10, and 0, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On a May 1986 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss. At the time of a November 1986 audiological evaluation two months after entrance into service, testing revealed pure tone thresholds, in decibels, of 20, 5, 5, 0, and 5 for the left ear; and 20, 10, 10, 5, and 10 for the right ear at 500, 1000, 2000, 3000, and 4000 Hertz. At a May 1990 audiological evaluation near the end of the first period of service, testing revealed pure tone thresholds, in decibels, of 10, 0, 15, 20, and 0 for the right ear; and 20, 5, 20, 20 , and 15 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the June 1990 service separation examination for the first period of service, testing revealed pure tone thresholds, in decibels, of 10, 0, 15, 20, and 20 for the right ear; and 20, 5, 20, 20, and 15 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran was found to have decibel level readings of 30 and 40 in the right and left ears, respectively, at 6000 Hertz; however, the readings at this level are not part of the criteria for determining hearing loss disability under 38 C.F.R. § 3.385. The Veteran was noted to have sensorineural high frequency hearing loss and was advised to wear ear protection. On the June 1990 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss; however, in the statement of health section in the report, it was indicated that the Veteran had slight hearing loss. At the time of the March 1991 service separation examination for the second period of service, the Veteran was found to have decibel level readings of 25, 20, 20, 20, and 20 in the right ear and 25, 20, 20, 20, and 20 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. On the March 1991 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss. In conjunction with his claim for service connection, received in August 2007, the Veteran submitted an August 2007 letter from his private physician, O. S., M.D., indicating that the Veteran had been a member of the U.S. Infantry for four years. He stated that the Veteran reported that during his time in the service, he was exposed to a great deal of auditory trauma, mostly from using weapons and heavy equipment. Dr. S. opined that more likely than not the Veteran's hearing loss was a result of his exposure to auditory trauma during his four years in the military. In his October 2009 substantive appeal, the Veteran indicated that he was exposed to a great deal of auditory trauma in the form of weapons noise and artillery. The Veteran stated that he did infantry work for approximately 3.5 years while stationed in Germany. He reported that he was in a mortar platoon and was exposed to thousands of mortar blasts from 120 MM mortars. He noted that sometimes they wore hearing protection and sometimes they did not. He indicated that he was recalled to go to Desert Storm and went to Germany to train with weapons for this war. He did not get deployed but was exposed to more auditory trauma. In support of his claim for service connection, the Veteran submitted the results of a November 2009 private audiogram. Testing performed at that time revealed pure tone thresholds, in decibels, of 10, 15, 20, 35, and 30 for the right ear; and 10, 10, 25, 25, and 15 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. These results do not meet the criteria for hearing loss (or impairment) that is considered a disability for VA disability compensation purposes under 38 C.F.R. § 3.385. In June 2010, the Veteran was afforded a VA audiological examination in conjunction with his claim. The examiner indicated that the claims folder was available and had been reviewed. The examiner stated that the Veteran's main complaint was hearing loss. She observed that the Veteran had been in the service from 1986 to 1991. Military noise exposure included exposure as part of the infantry/mortar platoon, to include exposure to mortars, artillery, engines, and track vehicles. Occupational noise exposure included work as a security guard, a chemist in a lab, a teacher, and a post office worker. There was minimal noise exposure in his civilian occupations. Testing performed at the June 2010 VA examination revealed pure tone thresholds, in decibels, of 10, 20, 25, 30, and 30 for the right ear; and 15, 10, 25, 30, and 25 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition was 100 percent in the right ear and 96 percent in the left ear. These results do not meet the criteria for hearing loss (or impairment) that is considered a disability for VA disability compensation purposes under 38 C.F.R. § 3.385. The VA examiner in June 2010 rendered a diagnosis of minimal high frequency bilateral hearing loss, which is recognition of some hearing loss (or impairment), but does not tend to show that the hearing loss meets the criteria of 38 C.F.R. § 3.385 to be considered a disability. The examiner indicated that the Veteran had mild bilateral sensorineural hearing loss. The examiner noted that the Veteran's stated behavioral difficulties were inconsistent with the results of the evaluation. She observed that the Veteran had borderline normal hearing yet stated that he had more difficulty hearing male talkers than female talkers, which was inconsistent with the Veteran's hearing status as well as what was typical of noise-induced hearing loss. The June 2010 examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of noise exposure during military service. She noted that, while there was evidence that the Veteran did experience some threshold shifts while in the military, his audiograms, including in his separation physical examination, showed hearing within normal limits. She noted that his current hearing test showed minimal hearing loss in a configuration that was not consistent with noise exposure and/or auditory trauma. She further observed that the Veteran reported that he rode motorbikes for approximately 18 years until the age of 35, which reflects significant post-service noise exposure. She stated that configuration of the audiogram was consistent with an accumulation of recreational noise and presbycusis. The examiner indicated that her opinion was based upon review of the claims folder, service treatment records, patient case history, and configuration of the audiogram. As to service connection for bilateral hearing loss, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims interpretation of 38 U.S.C.A. § 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). As noted above, the Veteran reported a history of in-service noise exposure as the result of his duties performed during service, which the Board would not dispute based upon the duties performed by the Veteran in service. While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds or speech recognition thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question that is also based on objective testing (audiometric and speech recognition) that the Veteran cannot perform on himself. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The competent evidence, consisting of the results of the inservice audiological evaluations, the VA audiological examination, and a private post-service audiological evaluation, affirmatively shows that the Veteran does not currently have a bilateral hearing loss as defined in 38 C.F.R. § 3.385. While the Veteran's hearing has worsened since his initial enlistment, there was no showing of a "hearing loss" disability as defined for VA rating purposes in service or subsequent to service, including prior to and during this claim period. For VA disability compensation purposes, the Veteran's bilateral hearing impairment does not meet the regulatory criteria to be considered a hearing loss disability. See 38 C.F.R. § 3.385. Because a current disability of hearing loss has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. As explained, there is no current, competent evidence of bilateral hearing loss within the meaning of 38 C.F.R. § 3.385. As such, the criteria for service connection have not been met, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs