Citation Nr: 1327766 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-20 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to May 1963. He was also a member of the inactive Reserves from May 1963 and August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented testimony at a personal hearing at the RO before the undersigned Veterans Law Judge in October 2012. A transcript of the proceeding is of record. The claim was remanded in January 2013 for additional development. It has been returned to the Board for further appellate action. The record before the Board consists of a paper claims file and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Hearing loss disability was not present during service, was not manifested within one year after the Veteran's extended period of active service, and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. U.S.C.A. §§ 101, 106, 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a letter mailed in March 2009, prior to the initial adjudication of the claim in June 2009. The record also reflects that all service treatment records (STRs) and service personnel records (SPRs), and all available post-service medical evidence identified by the Veteran have been obtained. The Board notes that a specific request for STRs associated with the Veteran's Reserve service was made and that the response indicated all available STRs had been mailed. See June 2010 VA Form 3101. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in June 2013, and a probative opinion (i.e. an opinion supported by a detailed rationale) has been obtained with respect to the etiology of the disability at issue. Moreover, there has been substantial compliance with the Board's January 2013 remand directives. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred or aggravated during inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss, which he contends is the result of exposure to acoustic trauma in the form of rapid fire during basic training and later, helicopter and tugboat noise, to include during his Reserve service. He asserts that he did not realize he had a hearing problem until the mid-1970s, and acknowledges that none of his treating physicians have indicated it was related to in-service noise exposure. See March 2009 VA Form 21-4138; July 2009 notice of disagreement; May 2010 VA Form 9; October 2012 transcript. The Veteran has also reported military noise exposure while serving as a radio operator in a helicopter outfit and working on the flight line without hearing protection. See December 2010 VA audio examination report and June 2013 hearing loss and tinnitus Disability Benefits Questionnaire (DBQ). The Veteran's STRs are negative for any complaint of hearing loss or finding of hearing loss disability. At the time of his March 1963 discharge from active duty service, the Veteran reported ear, nose or throat trouble, as well as running ears, but he did not report problems with hearing and clinical evaluation of his ears and drums was normal. The findings on the audiological evaluation did not evidence hearing loss disability. The post-service medical evidence of record confirms that the Veteran has bilateral hearing loss disability. In addition, the Board has found the Veteran's contentions with respect to his in-service noise exposure to be credible. The question to be resolved in this case is whether the current bilateral hearing loss is etiologically related to active service. The Board determined in its January 2013 remand that the opinion against the claim provided by a December 2010 VA examiner was not adequate. That leaves only one adequate opinion of record that addresses this question, namely the opinion provided at the time of the June 2013 DBQ. The June 2013 VA examiner reported conducting an in-person examination and reviewing the Veteran's claims folder. The Veteran reported in-service noise exposure and denied a history of vertigo, ear infections, ear surgery, and a family history of hearing loss. It was the examiner's opinion that it is not at least as likely as not that the Veteran's hearing loss was caused by or a result of an event in service. The rationale employed was that the Veteran's entrance and separation audiograms were within normal limits in both ears with no standard threshold shifts during military service. The Board acknowledges that, in explaining how she came to this determination, the June 2013 VA examiner noted the absence of evidence of hearing loss at separation. The examiner did not rely solely on the normal limits on audiometric testing at separation, however; rather, the examiner relied on the absence of evidence suggestive of a threshold shift between entrance and separation. This is an appropriate, and adequate, rationale for the examiner's opinion. Thus, the Board finds the examiner's opinion is highly probative. With respect to the Veteran's statements, the Board notes that the Veteran has not alleged that he noticed hearing loss in service. While he apparently believes that his hearing loss is related to in-service noise exposure, there is no indication in the record that he possesses the expertise required to provide a competent opinion concerning the etiology of his hearing loss. The only probative opinion of record is against the claim. Accordingly, service connection is not warranted for the Veteran's bilateral hearing loss disability. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs