Citation Nr: 1325407 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-04 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from November 1981 to March 1982 and March 1983 to March 1986. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes that the record contains additional evidence submitted after the most recent Supplemental Statement of the Case in this claim from September 2010. However, the Board finds the additional records submitted relate to medical issues unrelated to the issue on appeal. This evidence primarily relates to the Veteran's back and hernia conditions, and as such is not pertinent to the issue on appeal. Therefore no remand for an addition Supplemental State of the Case is required in this appeal. See 38 C.F.R. § 19.31. FINDINGS OF FACT 1. The evidence establishes the Veteran currently has hearing loss in his left ear which began during his military service. 2. The evidence does not establish the Veteran currently has hearing loss in his right ear which either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. Criteria for service connection in the Veteran's left ear have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Criteria for service connection in the Veteran's right ear have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case the Veteran is seeking service connection for bilateral hearing loss. As an initial point, the Board acknowledges that the Veteran was exposed to very loud noise during his military service. His DD-214 shows he worked as an armor crewman, and the Veteran testified he was a gunner and routinely exposed to the firing of guns, frequently without hearing protection. Therefore, the Board finds the Veteran was exposed to loud noise throughout his military service. Military noise exposure alone is not grounds for service connection, but rather the evidence must establish the military noise exposure caused hearing loss. Service treatment records were reviewed but fail to establish the Veteran made any complaint of loss of hearing during his military service. At enlistment in November 1981 the Veteran was examined. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 25 20 0 0 0 Under the regulations hearing impairment constitutes a disability for VA purposes when 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. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the Board finds the audiometric testing conducted at the Veteran's enlistment into military service revealed the Veteran had some hearing loss in his left ear at low frequencies, but he did not have a hearing loss disability for VA purposes. Additional audiometric testing was conducted throughout the Veteran's military service. This testing continued to reveal some degree of hearing loss in the Veteran's left ear, but no hearing loss disability for VA purposes. In December 1985 the Veteran was provided with his last audiometric testing before separation from military service. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 5 10 5 LEFT 35 30 10 35 35 These results show the auditory threshold for four of the frequencies in the Veteran's left ear was 26 deciles or greater. As such, the results of this audiometric testing reveal the Veteran had a hearing loss disability for VA purposes in his left ear during his military service. 38 C.F.R. § 3.385. However, the results do not establish the Veteran had a hearing loss for VA purposes in his right ear. The Veteran separated from military service in March 1986. He filed his current claim in May 2008. In June 2008 he was provided with a VA examination the measure his hearing acuity. Audiometric testing was conducted and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 25 30 LEFT 25 25 25 30 35 Word recognition scores suing the Maryland CNC test were 94 percent bilaterally. Therefore, the Board finds the results of this testing did not establish the Veteran had hearing loss for VA purposes in either ear. See 38 C.F.R. § 3.385. Additional audiometric testing was conducted by a VA facility in July 2009. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 25 25 LEFT 30 30 20 25 25 The reviewing audiologist opined the Veteran had normal hearing for VA purposes. The Board agrees; this audiometric testing also does not establish the Veteran had hearing loss for VA purposes in either ear. See 38 C.F.R. § 3.385. In September 2010 the Veteran was provided with an additional VA examination. Audiometric testing was conducted and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 35 25 35 LEFT 15 30 35 25 35 These results show the auditory threshold for three of the frequencies in the Veteran's left ear was 26 deciles or greater. As such, these results establish the Veteran had hearing loss for VA purposes in his left ear. However, these results still do not establish the Veteran had hearing loss disability for VA purposes in his right ear. Based on the foregoing, the Board finds the evidence establishes the Veteran was exposed to loud noise during his military service, experienced hearing loss for VA purposes in his left ear during his military service, and currently has a hearing loss disability for VA purposes in his left ear. The Board acknowledges that VA audiometric testing in 2008 and 2009 suggested the Veteran did not have a hearing loss disability in his left ear. However, the presence of a chronic disability at any time during the claim process can justify a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, the regulations provide that all reasonable doubt shall be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Therefore, notwithstanding the 2008 and 2009 testing, the Board finds the Veteran is shown to have a current hearing loss disability in his left ear. Therefore, the Veteran's claim for service connection hearing loss in his left ear is granted. However, the evidence does not establish the Veteran had hearing loss disability for VA purposes in his right ear at any point during the period on appeal. Service treatment records and all post-service audiometric testing included in the record reflect the Veteran did not have hearing loss disability for VA purposes in his right ear. Therefore, the Veteran's claim for service connection for hearing loss in his right ear is denied at this time. This finding does not suggest that the Veteran's hearing in this ear is as good as it has always been, however, at this time, it is within a range of normal that makes it impossible for the VA to consider it a "disability" at this time. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and post-service VA treatment records have been obtained, and the Veteran has not alleged he received any private treatment regarding his hearing acuity. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for left ear hearing loss is granted. The Veteran's claim for service connection for right ear hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs