Citation Nr: 1327668 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-41 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1988 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT The Veteran does not currently have right ear hearing loss, as defined by VA regulation. CONCLUSION OF LAW Service connection is not warranted for right ear hearing loss. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 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 clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 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. In this case, in a November 2008 letter, the RO provided notice to the Veteran needed to substantiate a claim for service connection. The letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service private treatment records. The Veteran was afforded a VA examination in December 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as the opinion was predicated on a full reading of the medical records in the Veteran's claims file. The VA nexus opinion provided considered all of the pertinent evidence of record, to include service treatment records and the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. The Board acknowledges the Veteran's contentions in an October 2009 written statement that he was told to "guess" on the Maryland CNC speech recognition test. There is no indication that the test was performed incorrectly or that the examination was in any respect inadequate. In this respect, the Court has held that "the Board is entitled to assume the competence of a VA medical examiner." Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) ("[T]he Board implicitly accepted [the VA examiner's] competency by accepting and relying upon the conclusions in her opinion."), aff'd, 232 F.3d 908 (Fed.Cir.2000). The Board therefore concludes that the examination is adequate for decisional purposes. See 38 C.F.R. § 4.2 (2012). The Board notes that the Veteran has been afforded an opportunity to submit evidence in support of his claim, and he has not submitted evidence demonstrating a lower speech recognition score. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. II. Analysis of Claim Legal Criteria - Service Connection 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; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran complained of hearing loss during service and was diagnosed with high frequency sensorineural hearing loss of the right ear during service. Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 there is no showing of a resulting chronic condition 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). Certain chronic disabilities, to include sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). 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. 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. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis The Veteran contends that right ear hearing loss is related to his duties as a gunner's mate during service. He asserts that he was exposed to small arms and cannon fire and ship noise. Service records show that the Veteran's service occupation was a gunner's mate. Therefore, in-service noise exposure is conceded. Service treatment records also reflect complaints of hearing loss. For instance, in June 1998, the Veteran reported high frequency hearing loss of both ears and trouble communicating with people due to hearing loss. An audiogram in August 1998 reflects that audiometric thresholds for the right ear at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz were 0, 0, 0, 15 and 15 decibels. The Veteran was diagnosed with mild to moderate sensorineural hearing loss of the right ear from 6000 to 8000 Hertz. An audiogram completed during service in September 2002 reflects that audiometric thresholds for the right ear at frequencies of 500, 1000, 2000, 3000 and 4000 Hertz were 0, 5, 10, 25 and 25 decibels. An audiogram performed at the Veteran's retirement examination in October 2007 shows that audiometric thresholds for the right ear at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 10, 10, 25 and 30 decibels. A physician diagnosed decreased hearing. A treatment record from Corpus Christi Naval Hospital, dated in December 2007, reflects that the Veteran reported difficulty hearing conversational speech, particularly in noise. An audiogram showed that audiometric thresholds for the right ear at frequencies of 500, 1000, 2000, 3000 and 4000 were 5, 15, 10, 15 and 15 decibels. Word recognition was 100 percent bilaterally. An audiologist diagnosed moderate sensorineural hearing loss, right ear, at 8000 Hertz only. The Veteran had a VA examination in December 2008. The VA examiner indicated that the service treatment records were reviewed. The VA examiner indicated that audiometric results since 1994 showed that the Veteran had a high frequency hearing loss, bilaterally, which was significantly worse in the left ear. The VA examiner noted that a complete audiological examination in December 2007 indicated a moderate sensorineural hearing loss at 8000 Hertz for the right ear. The Veteran's chief complaint was gradual hearing loss in both ears since 1998. The Veteran reported a history of military noise exposure with hearing protection. The Veteran reported that he was a gunner's mate in the Coast Guard for 20 years. He reported that he was exposed to weapons fire, turbine engines and pneumatic tools. He denied civilian noise exposure. On audiological examination, pure tone thresholds for the right ear at thresholds of 500, 1000, 2000, 3000 and 4000 were 10, 15, 10, 20 and 15. Word recognition using the Maryland CNC test was 94 percent. The VA examiner diagnosed normal hearing for the right ear, from frequencies of 500 to 4000 Hertz. The Board finds that the Veteran does not have a current right ear hearing loss disability, as defined by § 3.385. The criteria set forth in § 3.385 are not met with respect to hearing impairment of the right ear for VA purposes. While he does have hearing loss at 8,000 hertz, he does not have an auditory threshold of 40 decibels or greater for any of the designated frequencies of 500, 1000, 2000, 3000, and 4000 hertz. He does not have at least three auditory thresholds of 26 decibels or greater for the designated frequencies. He also does not have a speech recognition score using the Maryland CNC Test of less than 94 percent. Even though there is evidence of diagnoses of high frequency sensorineural hearing loss in the right ear, the VA examination in December 2008 shows that the degree of hearing loss or impairment in the right ear does not meet the criteria of hearing loss disability under 38 C.F.R. § 3.385. The current disability requirement of 38 C.F.R. § 3.303 has not been satisfied because the Veteran has not had a right ear hearing loss disability as required by 38 C.F.R. § 3.385 at any time during the pendency of his claim for VA disability compensation. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In a July 2013 brief in support of the claim, the Veteran's representative asserted that service connection is warranted for right ear hearing loss pursuant to 38 C.F.R. § 3.383. The provisions of § 3.383(a)(3) are not applicable in this case. The Veteran's service-connected left ear hearing loss is currently rated as non-compensable, and the Veteran does not have a hearing loss disability of the right ear that meets the provisions of § 3.385. Because the Veteran does not have a right ear hearing loss disability as defined by VA regulation, service connection may not be granted for right ear hearing loss. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (holding that there can be no valid claim for service connection in the absence of a current disability). As there is a preponderance of the evidence against the claim, reasonable doubt may not be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). ORDER Service connection for right ear hearing loss is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs