Citation Nr: 1327710 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-11 976 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for a claimed bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO. In November 2011, the Board reopened the Veteran's claim of service connection and remanded the matter for further development. A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system reveals that the August 2013 appellate brief has been associated with the case file; otherwise the documents are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The Veteran currently does not have a bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The claim of service connection for a bilateral hearing loss disability must be denied by operation of law. 38 U.S.C.A. §§ 1101, 1131, 1137, 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 The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication VCAA notice letter in September 2006 before adjudication in November 2006. The Veteran was notified of the evidence needed to substantiate the claim for service connection (to include the claim to reopen), as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. Duty to Assist VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service medical records and lay statements have been associated with the record. Additionally, the Veteran was afforded a VA examination in November 2011pursuant to a Board remand. The Board finds that this VA examination is fully adequate as the VA examiner reviewed the Veteran's claims folder, to include the Veteran's private treatment records, examined the Veteran, considered the Veteran's self-reported history of noise exposure, and provided an etiological opinion that is consistent with the rest of the evidence of record. The Board also notes that the Veteran voluntarily withdrew his request for a Board hearing in May 2009. Significantly, the Veteran and his representative have not identified, nor does the record otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. 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). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service incurrence may be presumed for some chronic disorders, including a sensorineural hearing loss, when demonstrated to a compensable degree within one year following separation from service. 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing impairment, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). 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, 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 existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The threshold question that must be addressed in this case (as with any claim seeking service connection) is whether the Veteran has a disability within the meaning of the law, for which service connection is sought. The Veteran contends that he has a current bilateral hearing loss disability that is due to noise exposure in service. His DD Form 214 confirms the Veteran's combat status and shows his military occupational specialty is consistent with the Veteran's claim that he was routinely exposed to hazardous noise. Therefore, the Board concedes that the Veteran was exposed to hazardous noise in service. See 38 U.S.C.A. § 1154(a). The Board notes that 38 U.S.C.A. Section 1154(b) does not automatically establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). The Veteran must still generally establish the claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. On this record, the Veteran currently is not shown to have a hearing loss disability for VA compensation purposes. As mentioned, the Court in Hensley has explained that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. The Court further opined that 38 C.F.R. § 3.385 operates only to establish when hearing loss can be service connected. Id. at 159. The Court also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met; a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The service treatment records do not show that the Veteran's hearing loss ever reached the "disability" level under 38 C.F.R. § 3.385 or that the Veteran made complaints of or received treatment for hearing complaints during service. The separation examination shows that the findings of hearing did not reach the level of a "disability." On enlistment examination in June 1987, puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were "0" across the board for both ears. An in-service audiogram in February 1989 showed puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 20, 0, 0, 0 and 0 in the left ear and 10, 0, 0, 0 and 10 in the right ear, respectively. On separation examination in July 1991, puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 0, 0, 0, 10 and 0 in the left ear, and 10, 0, 0, 0, and 10 in the right ear, respectively. However, the Board acknowledges that even "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service". Hensley, 5 Vet. App. at 160 (1993). The Veteran underwent a VA audiometric evaluation in March 1992. Bilateral hearing was found to be within normal limits. Puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 10, 5, 5, 10 and 10 in the left ear and 10, 0, 0, 10 and 15 in the right ear, respectively. The speech recognition score using the Maryland CNC Test were 96 percent in the left ear and 98 percent in the right ear. In support of his claim, the Veteran submitted post-service private treatment records and a letter from a speech pathologist. A report dated September 2007 from Dr. R.S. indicated that formal hearing testing was recommended for the Veteran upon completion of a physical examination. Dr. R.S. noted that the Veteran had decreased hearing in his right ear at "6 out [of] 10 level" compared to the left ear and a previous physical examination revealing decreased right side hearing. However, this record does not provide any objective testing of hearing acuity by which the Veteran's claimed hearing loss could be measured. The speech pathologist's letter submitted in May 2009 indicated that there were many ways that decreased hearing could impact the Veteran's day to day communicating in his job on a daily basis. A general pictorial graph was attached to the letter. However, the letter or the attachment did not measure the Veteran's hearing acuity, which was necessary for a determination as to whether there was a hearing loss disability pursuant to VA standards. The Veteran underwent a VA audiometric examination in March 2008 where he was found to have normal hearing in both ears. Upon testing, puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 5, 5, 5, 25 and 25 in the left ear and 10, 10, 10, 20 and 20 in the right ear, respectively. The speech recognition score using the Maryland CNC Test were 98 percent in the left ear and 94 percent in the right ear. Lastly, on VA examination in November 2011, the Veteran again underwent audiometric testing. The audiogram shows puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were 10, 10, 5, 25 and 20 in the left ear and 20, 15, 10, 15 and 20 in the right ear, respectively. The speech recognition score using the Maryland CNC Test were 96 percent in the left ear and 94 percent in the right ear. The VA examiner did not find there to be sensorineural, mixed, or conductive hearing loss; however, she noted that there were significant changes in hearing thresholds since service. Yet, she noted a negative nexus, finding that hearing was within normal limits across the frequency range as evident since service. She addressed the pertinent evidence of record, noting that there was evidence of a temporary threshold shift in the right ear. Yet, based on the current examination, she found that the Veteran had adequate hearing sensitivity for communication purposes. Significantly, it was noted that the audiometric testing in November 2011 showed that the Veteran still did not meet the VA regulations for a hearing loss "disability" under 38 C.F.R. § 3.385. On this record, all of the above-cited testing results do not establish current hearing loss in either ear as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at minimum of three frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent. See 38 C.F.R. § 3.385. Thus, he did not meet the objective threshold for a hearing loss disability under VA regulation at any point during service or at any period thereafter. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, neither the Veteran nor his representative has presented or identified existing audiometric testing results that meet the requirements of that regulation for a hearing loss disability. Instead, the record contains audiometric findings over the years that show his bilateral hearing has been consistently within normal limits as per VA regulations. The fact that he has had hearing tests over the years with similar results is very probative to whether he has the claimed disability. As such, the Veteran is not found to have a bilateral hearing loss disability for compensation purposes under VA standards. The objective test results are controlling in this case. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For this reason, the Board finds that the claim for service connection for a claimed bilateral hearing loss disability must be denied by law. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim of service connection for a bilateral hearing loss disability must be denied by law. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs