Citation Nr: 1324619	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  10-36 498A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel


INTRODUCTION

The Veteran served on active duty from July 1942 to January 1946.  He died in December 2010 and the appellant is his surviving son.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  The Veteran perfected an appeal prior to his death.  In a July 2012 memorandum, the Pension Management Center in St. Paul, Minnesota, determined that appellant was a proper substitute with respect to the issue of entitlement to service connection for bilateral hearing loss.  

The record before the Board consists of paper claims files and an electronic file known as Virtual VA.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Neither a current diagnosis of bilateral hearing loss, nor evidence indicating the Veteran met the requirements of 38 C.F.R. § 3.385 prior to his death, are of record.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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.  Those five elements include:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that VA's duty to notify was satisfied by a letter sent to the Veteran in October 2009 with regard to the claim for service connection for bilateral hearing loss.  The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ) in December 2009.  

VA's duty to assist was also met in this case as copies of the Veteran's service treatment records are in the claims file.  See VA Form 3101 received October 2009.  The Board acknowledges that the claims file contains no VA or private treatment records; however, the Veteran did not submit any authorization for the release of medical information or records from any private medical providers, nor did he indicate he was receiving VA treatment for bilateral hearing loss prior to his death.  The Board also acknowledges that no VA examination was conducted in this case.  It finds, however, that no examination or opinion is needed because there is no evidence of in-service occurrence, no evidence of continuity of symptomatology since discharge, and no evidence of a current disability per 38 C.F.R. § 3.385.  See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Based on the foregoing, all known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and the appellant has not contended otherwise.  The record does not suggest the existence of additional, pertinent evidence that has not been obtained.  For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the appellant.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  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).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system.  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)).  

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b).

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service.  See Hensley, 5 Vet. App. at 159.  When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service.  Id. at 160.

Prior to his death, the Veteran sought service connection for bilateral hearing loss.  He did not provide any specific information regarding how bilateral hearing loss was incurred or where he had received treatment, if any.  See VA Form 21-526.  In fact, the Veteran did not provide any argument in support of his claim, and in October 2009 (in response to VA's letter regarding what was needed to substantiate a claim for service connection for bilateral hearing loss) he indicated that he had no other information or evidence to give VA to support his claim.  

Service treatment records are devoid of reference to complaint of, or treatment for, any hearing problems, to include complaint of a decrease in hearing acuity.  Service personnel records indicate that the Veteran's military occupation specialty was clerk typist and that he performed clerical duties in an engineering section while assigned to the 69th Air Service Squadron on Australia, New Guinea, Troban Islands, Biak Island, Luzon, and Okinawa.  See DD 214; Separation Qualification Record.  There is no indication that he had exposure to noise while in service.  

The Veteran did not report receiving any post-service treatment for bilateral hearing loss, either through VA or a private medical provider.  As such, there is no post-service medical evidence of record.  

The preponderance of the evidence of record is against the claim for service connection for bilateral hearing loss.  A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the 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); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  In the absence of post-service medical evidence, there is no evidence that prior to his death, the Veteran had been diagnosed with bilateral hearing loss or that he had hearing loss per VA standards.  See 38 C.F.R. § 3.385.  Nor is there evidence he exhibited hearing loss per VA standards within one year of his January 1946 discharge from service.  For these reasons, service connection for bilateral hearing loss must be denied.  

As the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, the statutory provisions regarding resolution of reasonable doubt are not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is denied.  



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs