Citation Nr: 1327682	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO. 11-10 075	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Marine Corps League


ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran had active duty service from January 2001 to January 2004 and from January 2006 to June 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Board notes that a claim for service connection for tinnitus was previously also on appeal.  However, that claim was adjudicated by the RO and granted in full in a June 2011 rating decision.  No appeal is of record from that decision for adjudication by the Board.

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 insure a total review of the evidence.


FINDINGS OF FACT

1. The Veteran had active duty service in Iraq that included combat action.

2. The Veteran had in-service noise exposure.

3. There has been no clinical demonstration of bilateral hearing loss disability for VA purposes at any time, to include during the period on appeal.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), 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).

The United States Court of Appeals for Veterans Claims (Court) 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.  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).

The record shows that through a VCAA letter dated June 2008 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection.  The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of award of the benefit sought.  The VCAA letter to the Veteran was provided in June 2008, prior to the initial unfavorable decision in October 2008.  

The Board also finds that there has been compliance with the VCAA duty to assist provisions.  The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence.  The Veteran also specifically denied receiving any private hearing treatment in a statement dated June 2008.  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).  No additional pertinent evidence has been identified by the Veteran.  The Veteran was also scheduled for a video hearing but did not appear.  The record is negative for a good cause excuse and the hearing request is therefore considered withdrawn.

The Veteran was afforded a VA examination in May 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiner was provided with the claims file, and the Veteran's history and complaints were recorded.  The examination report sets forth detailed examination findings to include a nexus opinion with adequate bases for the opinion.  As such, the examination report is adequate to decide the claim of service connection.  Furthermore, neither the Veteran nor his representative have challenged the adequacy of the examination.  Thus, further examination is not necessary regarding the issue on appeal.

II. Service connection for bilateral hearing loss

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 active service.  38 U.S.C.A. § 1110.  "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.

In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nichols, 21 Vet. App. 303, 309 (2007).  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).

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that he has experienced bilateral hearing loss as a result of combat noise exposure.  Service personnel records indicate that the Veteran served in Iraq from January 2006 to June 2007.  His military occupational specialty was infantryman.  While in Iraq, he was awarded a combat action badge, indicating that he saw time in combat.  Thus the Board concedes in-service noise exposure.

Service medical records contain the results from an audiometric test conducted at enlistment in January 2001, the pure tone threshold results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
0
10
LEFT
0
0
0
0
0

The record is negative for any audiometric testing conducted at separation.

In May 2011 the Veteran was afforded a VA audiological examination.  The examiner reviewed the claims file, medical history, and noted the Veteran's combat noise exposure.  The examiner also noted that the Veteran reported his alleged hearing loss affected his daily activities, stating that it is annoying.  A pure tone threshold and Maryland CNC speech recognition test were also conducted, the results of which were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
5
0
LEFT
5
5
5
5
10

Maryland CNC right ear: 98%
Maryland CNC left ear: 98%

The examiner diagnosed the Veteran with hearing within normal limits bilaterally.  She opined that the Veteran's audiometric testing performed at enlistment revealed bilateral hearing within normal limits and that there were no threshold shifts when comparing the enlistment audiometric test and the May 2011 test.  The examiner ultimately concluded that hearing loss was not caused by nor related to combat noise exposure in service.

As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold at any frequency (500 HZ - 4000 HZ) is 40 decibels or greater, or when the threshold is at least 26 decibels at any three frequencies (500 HZ - 4000 HZ) or when the Maryland CNC test scores are less than 94 percent.

The evidence in this case reflects that the Veteran does not currently have a hearing loss disability for VA purposes in either ear.  As described, audiometric testing in May 2011 revealed that the Veteran had no auditory thresholds at any frequency above 10 decibels and his Maryland CNC test score was 98 percent bilaterally.  These results do not reflect that the Veteran has a hearing loss disability as established by 38 C.F.R. § 3.385.  The Veteran has not challenged the accuracy of the May 2011 audiometric test and has not submitted any additional evidence in support of his claim that his reported hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385.  While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity, the evidence in this case simply does not support a finding that he currently has a hearing loss disability for VA purposes.

The Board also notes that the Veteran complains of "slight" hearing loss in his left ear.  This complaint is supported by VA treatment records dated February 2008 which reflect that the Veteran experienced slight sensoneural hearing loss in his left ear at the 6000 Hz frequency threshold.  However, as described, the 6000 Hz frequency threshold falls outside of the frequency range used by the VA to determine whether a hearing loss disability exists.  Therefore, any degree of hearing loss experienced by the Veteran at that frequency would not be probative in establishing a hearing loss disability for VA purposes.

In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported bilateral hearing loss; and, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013).  Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs