Citation Nr: 1330536 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-23 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for hearing loss of the left ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Winston-Salem, North Carolina, regional office (RO) of the Department of Veterans Affairs (VA). This matter was originally considered and developed by the RO as entitlement to service connection for bilateral hearing loss. For reasons that will come apparent, the Board will consider service connection for hearing loss for each ear on a separate basis. The issues of entitlement to service connection for hearing loss of the left ear and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not currently have hearing loss of the right ear as defined by VA regulation. CONCLUSION OF LAW Hearing loss of the right ear was not incurred in or aggravated by service, nor may it be presumed to have been incurred due to service. 38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA 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. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided with a letter in November 2007 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded an appropriate VA examination. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that he has developed hearing loss due to acoustic trauma service. He states that he worked on an aircraft carrier flight line and with helicopters, and that he was also exposed to large caliber gunfire while stationed aboard another ship. 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; 38 C.F.R. § 3.303(a). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in 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 when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These disabilities include other organic diseases of the nervous system, which includes sensorineural hearing loss. If other organic diseases of the nervous system such as sensorineural hearing loss becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) 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). The Veteran's service treatment records shows that he was afforded hearing examinations in March 1971, March 1972, and March 1973, but he was not found to have right ear hearing loss as defined in 38 C.F.R. § 3.385. The evidence also does not show current right ear hearing loss as defined by 38 C.F.R. § 3.385. An October 2007 private audiology report shows audiological thresholds of 20, 25, 25, and 30 decibels at the frequencies of 500, 1000, 2000, and 4000 Hertz. The threshold at 3000 Hertz was not provided. Hearing discrimination was 100 percent, although there is no evidence that the Maryland CNC Test was utilized as required. The Veteran was afforded a VA examination in May 2008, which included an audiometry report. The Veteran had puretone thresholds of 20, 20, 20, 30, and 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech discrimination was 100 percent. These findings fail to meet the definition of a hearing loss disability as outlined in 38 C.F.R. § 3.385. In reaching this decision, the Board has considered the Veteran's sincere belief that he has hearing loss as a result of service. Although the Veteran is credible and is competent to describe his hearing loss, he is not competent to establish that it meets the required standards of 38 C.F.R. § 3.385. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). This has not been demonstrated on objective testing, and there is no basis for service connection. The evidence fails to demonstrate that the Veteran has met the requirements of 38 C.F.R. § 3.385 at any point. As the Veteran does not have hearing loss of the right ear that meets the basic requirement for a disability under 38 C.F.R. § 3.385, the Board's analysis does not need to go any further, and service connection cannot be established. ORDER Entitlement to service connection for hearing loss of the right ear is denied. REMAND The May 2008 VA audiometry report showed current left ear hearing loss as defined by 38 C.F.R. § 3.385. The service treatment records do not show hearing loss of the left ear as required by 38 C.F.R. § 3.385. However, elevated hearing thresholds were present at 6000 Hertz. Based on findings as noted on a March 1971 audiometric examination, the VA examiner opined that it was "highly likely" that the Veteran's hearing loss was present at the time of his induction. Therefore, based on the assumption that hearing loss existed prior to service, he opined that it was less likely than not that the hearing loss was caused by or the result of noise exposure during active service. Clarification of the examination is needed in light of the presumption that the Veteran was in sound condition when he entered service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination of his left ear. The claims folder must be provided to the examiner for use in the study of this case. All indicated tests and studies should be conducted. The examiner is advised that the Veteran's hearing must be presumed to have been normal upon entry into active service. The examiner should answer the following questions: a) Is there clear and unmistakable evidence that left ear hearing loss existed prior to active service? b) If the answer to (a) is affirmative, is there clear and unmistakable evidence that left ear hearing loss was not aggravated in active service? c) If the answer to (a) is negative, is it as likely as not that current left ear hearing loss was incurred due to active service? In answering this question, the examiner should consider the reports that the Veteran took anti-tuberculosis drugs in service; and comment on the implications of the hearing loss noted at 6,000 Hertz. in service. d) If left ear hearing loss is found to have been incurred or aggravated due to service, is it as likely as not that tinnitus is due to or aggravated by hearing loss? e) If left ear hearing loss is not found to have been incurred or aggravated due to service, is it as likely as not that tinnitus was incurred due to active service on a basis other than hearing loss? The examiner should provide reasons for these opinions. If the examiner is unable to provide any portion of the requested opinion without resort to speculation, the examiner should provide reasons why this is so, and state whether there is missing evidence that might enable the opinion to be provided should be identified. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs