Citation Nr: 1325471	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  10-01 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran had active duty service from August 1979 to July 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A T Board hearing was held in September 2011.

The Board notes that although the Veteran appealed the matters of service connection for bilateral hearing loss and service connection for a respiratory disorder, the RO, in a January 2013 rating decision, granted his claims for left ear hearing loss and for a respiratory disorder.  As such, the only issue remaining on appeal is service connection for right ear hearing loss.


FINDING OF FACT

The Veteran does not currently have a right ear hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

Right ear hearing loss disability was not incurred in or aggravated by the Veteran's active duty service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R.   §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The record shows that in September, November, and December 2008 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal.  The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  In this case, the RO provided VCAA notice to the Veteran in September, November, and December 2008, which was prior to the March 2009 rating decision.   Accordingly, the requirements the Court set out in Pelegrini have been satisfied.

Further, the notice requirements apply to all five elements of a service connection claim:  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 v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection.  The September, November and December 2008 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  Service treatment records (STRs) and VA medical records are associated with the file.  Additionally, the Veteran was afforded VA examinations in November 2009 and October 2012.  Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.

Analysis

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in 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. § 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss (organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  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).

The issue before the Board involves a claim of entitlement to service connection for right ear hearing loss.  For the purpose of applying the laws administered by VA, impaired hearing will be considered 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.
 
The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system).  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

After a review of the evidence, the Board is unable to find that service connection for right ear hearing loss is warranted because there is no demonstrated right ear hearing loss disability as such is defined by 38 C.F.R. § 3.385.

The Veteran's STRs show that upon entrance into the military, audiometry on August 1979 examination revealed that pure tone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
20
30

On July 1981 separation examination, pure tone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
10
25
20



On the authorized VA audiological evaluation in November 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
30
25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear.

On the authorized VA audiological evaluation in October 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
30
25

Speech audiometry revealed speech recognition ability of 94 percent in the right ear.

Hearing loss was not diagnosed in service.  Further, neither VA examination produced thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz that were 26 decibels or greater, or a threshold of 40 decibels or greater in any of the frequencies.  Additionally, speech recognition scores were not less than 94 percent.

The Board acknowledges that the November 2009 VA examiner diagnosed mild hearing loss at 3000 Hertz bilaterally and that the October 2012 VA examiner diagnosed sensorineural hearing loss bilaterally.  However, while the Board acknowledges that hearing loss in the right ear is present, it does not meet the regulatory definition for bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385.

The threshold requirement that must be met in order to establish a claim for service connection is that there must be competent evidence (a medical diagnosis) of a current disability (or one that existed on or after the date of application for service connection).  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As the evidence of record shows that the Veteran has never been diagnosed with right ear hearing loss for VA purposes, the Board finds that the Veteran does not have a current disability for which service connection can be granted.
 
The Board again notes that although there may be some slight loss of hearing acuity in the right ear, for purposes of having a hearing loss disability for VA compensation purposes the audiological test results must be shown to satisfy         38 C.F.R. § 3.385.  The record as it stands simply does not show current right ear hearing loss disability as defined in 38 C.F.R § 3.385.  Should the Veteran's right ear hearing acuity decrease in the future so that audiological examination shows that the provisions of 38 C.F.R. § 3.385 are met, then he may reopen his claim and the question of a nexus or link to service will be considered.  However, without evidence of current right ear hearing loss disability as defined by regulation, the appeal must be denied at this time.


ORDER

The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs