Citation Nr: 1331176 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-09 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 1980 to August 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 and a March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the April 2008 rating decision, the RO denied the claim for entitlement to service connection for bilateral hearing loss. Shortly thereafter, additional service treatment records were associated with the claims folder, and the RO reconsidered the Veteran's claim, but confirmed and continued the denial of the benefit sought. The Veteran appealed. FINDING OF FACT The competent medical evidence of record does not demonstrate that the Veteran has a current diagnosis of bilateral hearing loss disability for purposes of establishing service connection. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, VA sent a letter to the Veteran in December 2007 that addressed the notice elements concerning his claims. The letter informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with audiology examinations in January 2008 and September 2012, in which the examiners identified the nature and severity of the Veteran's claimed bilateral hearing loss, and the examiners reported the audiogram results. The Board finds that the examinations are fully adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the rules regarding service connection in general, there are additional considerations for addressing claims of entitlement to service connection for hearing loss. Under the laws administered by VA, a certain threshold level of hearing impairment must be shown in order for hearing loss to be considered a disability. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater; or when speech recognitions scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. With audiology examinations, the threshold for normal hearing is from zero to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet App. 155 (1993). However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks service connection for bilateral hearing loss due to in-service noise exposure. He asserts that he was exposed to acoustic noise from working in a warehouse during his 27 years of active service. VA has conceded that the Veteran was exposed to acoustic trauma during service when he was awarded service connection for tinnitus. See October 2012 rating decision. A review of the Veteran's service treatment records show that he underwent at least fifteen audiology evaluations during his 27 years of active service. Except for the audiometric results in a January 1987 evaluation report, which reflects 40 decibels at 1000 Hertz in the right ear, none of the earlier or later audiometric results demonstrates findings of hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. While several of the audiogram results during his period of service do reflect an indication of hearing loss, with results of 20, 30 or 35 decibels at various Hertz levels, and the records do shows that the Veteran had some diminished levels of hearing acuity shown in service, none of these results show hearing loss as defined under 38 C.F.R. § 3.385. See Hensley, 5 Vet App. at 155. Pertinently, the report of a May 2007 examination prior to separation shows that the Veteran's ears were evaluated as normal and the audiometric results do not demonstrate bilateral hearing loss as defined by VA. See 38 C.F.R. § 3.385. Since the Veteran's period of service, the record shows that the Veteran's hearing acuity has been evaluated five times, with four times by VA audiology specialists and once by a private audiologist. The report of a January 2008 VA Audiology examination contains the findings from a November 2007 audio graph, which revealed that the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 5, 10, 10, 15, and 20 decibels in the right ear, and 5, 15, 10, 20 and 30 decibels in the left ear. The average pure tone thresholds were 14 decibels in the right ear and 19 decibels in the left ear. Speech recognition scoring utilizing the Maryland CNC word list was 98 percent in the right ear and 96 percent in the left ear. The Veteran was diagnosed with hearing within normal limits, bilaterally. VA treatment records show that the Veteran under audiology evaluations in July 2009 and in August 2010. Although the July 2009 audiometric results are not contained in the record, the treating VA audiologist noted that the results from October 2010 audio graph did not reflect a significant change from the prior 2009 results. Given that the VA audiologist opined that the findings from 2009 and 2010 were similar and, as shown below, the October 2010 do not reflect bilateral hearing loss as defined by VA, the Board does not find that a remand is needed at this time to attempt to obtain those original 2009 results. The October 2010 audiometric results revealed the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 5, 10, 10, 15, and 25 decibels in the right ear, and 5, 10, 5, 15 and 25 decibels in the left ear. The average pure tone thresholds were 13 decibels in the right ear and 12 decibels in the left ear. Speech recognition scores were not recorded. A January 2012 private audiology evaluation report shows that the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 5, 10, 5, 15, and 25 decibels in the right ear, and 10, 10, 10, 15 and 35 decibels in the left ear. The average pure tone thresholds were 12 decibels in the right ear and 14 decibels in the left ear. Speech recognition scores were not recorded. The private audiologist concluded that the Veteran had mild hearing loss, bilaterally. The Veteran was most recently afforded a VA Audiology examination in September 2012. That examination report revealed the Veteran's pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 10, 10, 5, 15, and 25 decibels in the right ear, and 10, 10, 15, 15, and 25 decibels in the left ear. The average pure tone thresholds were 14 decibels in the right ear and 17 decibels in the left ear. Speech recognition scoring utilizing the Maryland CNC word list was 100 percent, bilaterally. The VA examiner diagnosed the Veteran with normal to mild hearing loss, bilaterally. Here, the record does not show that the Veteran has current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The most recent September 2012 audiometric findings reveal that the Veteran does not have any pure tone thresholds of 40 decibels or greater in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, that the Veteran does not have at least three pure tone thresholds at 26 decibels or greater at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, and that the Veteran does not have speech recognitions scores of less than 94 percent in either ear. See 38 C.F.R. § 3.385. Although the record reflects that the Veteran does have some degree of bilateral hearing loss, hearing disability as defined under 38 C.F.R. § 3.385 have not been shown. The Board is aware that his January 1987 service audiology examination revealed thresholds that meet VA disability standards in the right ear, but these thresholds were not taken during the timeframe on appeal and are isolated in nature. Pertinently, the later audiometric results recorded in October 1987 and December 1987 as well as May 2007 do not demonstrate hearing loss disability as defined by 38 C.F.R. § 3.385. The Board also notes that while a review of the available service treatment records shows that the Veteran had some diminished levels of hearing acuity shown in service, any subsequent diminished level of hearing acuity was not so severe as to amount to a hearing loss disability. VA laws and regulations provide that there must be a current hearing loss disability in order to warrant an award of service connection. See Hickson, 12 Vet. App. at 253 (1999). Here, neither of the VA audiology examinations revealed findings that show hearing loss in either ear that was so severe as to constitute a disability as defined by 38 C.F.R. § 3.385. Moreover, none of the VA audiologist or the January 2012 private audiologist observed that the Veteran has more than mild bilateral hearing loss, bilaterally, at any point during the period under appeal. The Board finds it highly pertinent that the findings from the VA evaluations and the private evaluation contain very similar audiometric findings. Without a diagnosis of a hearing loss disability, the claim for service connection for hearing loss must be denied. 38 C.F.R. §§ 3.303 and 3.385. Since the Veteran does not have a hearing loss disability as defined by VA in either ear, service connection for bilateral hearing loss is not warranted. 38 C.F.R. §§ 3.303 and 3.385. Should the Veteran's hearing loss change in the future; he is encouraged to again seek an award of service connection. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs