Citation Nr: 1328654 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-09 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1981 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for bilateral hearing loss. FINDING OF FACT The competent and probative evidence of record preponderates against a finding that the Veteran has bilateral hearing loss for VA disability purposes. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGSAND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2009 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the December 2009 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board notes that the Veteran was not scheduled for a VA examination to determine whether he has bilateral hearing loss disability related to noise exposure in service. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for service connection for bilateral hearing loss, however, there is no showing of a current disability pursuant to 38 C.F.R. § 3.385. While the Veteran submitted a private medical report and report of an audiological evaluation, such findings simply did not show current evidence of hearing loss disability for VA purposes. Thus, a VA examination is not necessary or warranted. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all available service records for the Veteran, and no post-service treatment records have been identified. As explained above, a VA examination was not obtained and is not necessary in order for the Board to decide this claim. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background and Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 ; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that sensorineural hearing loss is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a) and may be subject to service connection based on continuity of symptomatology. In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). 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 at 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 Veteran contends he should be entitled to service connection for bilateral hearing loss, based on his reported exposure to excessive noise during service. He claims he was exposed to the noise of rifles, machine guns, and grenades during service. His DD Form 214 shows that his military occupational specialty (MOS) during service was "basic metal worker". The record reflects that the Veteran's exposure to excessive noise/acoustic trauma in service has essentially been conceded, and the Board has no reason to discount this finding. In that regard, by January 2010 rating decision, the RO granted service connection for tinnitus, essentially based on the Veteran's exposure to excessive noise in service and the supporting VA medical opinion provided in December 2009. What is missing in this matter is objective evidence showing that the Veteran has hearing loss disability for VA purposes. In the January 2010 rating decision, however, the RO denied service connection for bilateral hearing loss, based on a private audiological evaluation, submitted by the Veteran, which did not show hearing loss disability for VA purposes and pursuant to 38 C.F.R. § 3.385. The record further shows that despite the Veteran's contentions, there has been no competent medical evidence showing that he has current hearing loss disability, in either the right or left ear, as prescribed by VA standards. 38 C.F.R. § 3.385. The reported pure tone thresholds and the maximum word recognition scores noted on the private audiological evaluation in December 2009, do not appear to meet the requirements of 38 C.F.R. § 3.385. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, supra. Full consideration has been given to the Veteran's assertions that he has bilateral hearing loss related to service. While he is competent to report that he has hearing loss, he has not provided competent medical evidence to support a finding of bilateral hearing loss hearing disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the presence of a hearing loss disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hearing loss as it relates to meeting the requirements of 38 C.F.R. § 3.385 is not the type of condition that is readily amenable to mere lay diagnosis, as the evidence shows that audiometric and word recognition testing is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report diminished auditory acuity, there is no indication that the Veteran is competent to provide the sort of objective findings required by 38 C.F.R. § 3.385. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or perform the necessary clinical testing. As the Veteran does not have bilateral hearing loss disability, as defined by regulation, service connection is not warranted. The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs