Citation Nr: 1331422	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-27 350A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to September 1975.

This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision rendered by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 

The Board notes that in his November 2012 request for a rescheduled hearing, the Veteran stated that he had been treated for anxiety and depression.  However, he gave no indication that either condition was the result of his military service, and he did not specifically express any desire to file a claim for either condition.  To the extent that the Veteran wishes to pursue a claim for either condition, he should submit such a request to the RO. 


FINDING OF FACT

While the Veteran was exposed to acoustic trauma during active military service, he does not have a bilateral hearing loss disability for VA purposes.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(c), 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In the instant case, notice was provided to the Veteran in March 2008, prior to the initial adjudication of his claim in January 2009.  The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim.  He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated.  The letter also informed the Veteran how disability ratings and effective dates were established.  As the content and timing of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran.  

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated the Veteran's service treatment records with the claims file.  The Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

On several occasions, the Veteran has requested that VA obtain the ship's log for the U.S.S. Caloosahatchee in order to show that he was exposed to loud noise during service.  However, as discussed below, the Board concedes the Veteran's military noise exposure and therefore the logs are not needed for this purpose.  Moreover, the Veteran's claim is being denied because he does not have a current disability, and therefore any findings regarding his hearing acuity during service are immaterial as they cannot establish a current hearing loss disability.  Therefore, a remand is not necessary to seek any ship's logs.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  

VA provided the Veteran an audiological examination in July 2010 to address his claim of service connection for bilateral hearing loss.  The examination and the opinion are adequate as the VA examiner conducted appropriate audiometric testing, considered the relevant medical history and the Veteran's statements regarding his claimed hearing loss, provided a sufficiently detailed description of the Veteran's hearing ability, and then proffered an opinion which was supported by a complete rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).

Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined.  The Veteran did request a hearing before the RO and a hearing was scheduled in September 2012.  However, the Veteran contacted the RO and asked that his hearing be rescheduled since he would be out of town.  A RO hearing was then scheduled for April 2013, but the Veteran failed to report for the hearing and has not provided any good cause for his absence.  He was informed of his failed to report in an April 2013 supplemental statement of the case, but he also failed to respond to this notice.  As such, the Veteran's hearing request is considered to have been withdrawn.

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

II.  Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
 
Service connection for hearing loss shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  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 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.  See 38 C.F.R. § 3.385. 

The Veteran contends that he suffers from a current hearing loss disability caused by acoustic trauma during his active duty service.  Specifically, he reported being exposed to loud noise from a steam turbine which made a constantly loud, whining or screeching noise because of a defective bearing.  He also reported being told at separation that he had hearing loss.  

In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).  Here, the Veteran's service personnel records document his service on the U.S.S. Caloosahatchee, a fleet oiler, and his service would likely have exposed him to loud noises as he reported.  As such, the Veteran's military noise exposure is conceded.  

However, military noise exposure alone is insufficient to establish service connection.  Rather, it must be shown that the noise exposure caused the Veteran to develop hearing loss for VA purposes.

The Board has reviewed the record and considered his assertions but finds that the record fails to demonstrate a current hearing loss disability for VA purposes, as defined above.  

While the Veteran has asserted on several occasions that he was told at separation that he had hearing loss, his service treatment records do not support such an assertion.  The Veteran underwent a separation physical, but no hearing loss was noted and no audiometric testing appears to have been conducted at that time.  Regardless, VA regulations require a current disability during the appeal period.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Since the Veteran was discharged in the 1970s and did not file a claim seeking service connection until 2008, any findings of hearing loss at that time would not establish that he currently has hearing loss for VA purposes.
   
Given the Veteran's military noise exposure, he was provided with a VA examination in July 2010.  The audiometric testing showed the following, with pure tone thresholds recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
20
30
LEFT
15
10
10
20
25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

The audiometric testing conducted at the examination is the only audiometric testing of record in the Veteran's claims file, and the Veteran has not alleged receiving any private hearing treatment.
Based on the report and the audiological test results set forth therein, the Board finds that the Veteran does not have bilateral hearing loss considered disabling for VA compensation purposes.  See 38 C.F.R. § 3.385.  Indeed, none of the auditory thresholds in any of the frequencies is 40 decibels or greater, and the auditory thresholds are 26 decibels or greater in only one frequency (not in four as would be required to show hearing loss for VA purposes).  Additionally, the Veteran's speech recognition score using the Maryland CNC test of 100 percent does not meet the criteria for a hearing disability.  Id. 

The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim, but he has submitted no competent medical evidence contrary to the findings cited above.  See 38 U.S.C.A. § 5107(a).

The Board acknowledges the Veteran has submitted for consideration his belief that his bilateral hearing loss is disabling for VA purposes and his contention that his claimed hearing disability was caused by in-service noise exposure.  As a lay person, the Veteran is competent to report what comes to him through his senses, and he is therefore competent to report diminished hearing acuity.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran lacks the medical training and expertise to provide a complex medical opinion such as diagnosing hearing loss for VA purposes, as this requires audiometric testing which would require medical training to administer.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  As such, the Veteran's assertion that he has bilateral hearing loss is insufficient to establish the presence of a current disability for VA purposes. 

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. §§ 1110, 1131.  Accordingly, because audiometric testing has not shown the Veteran to have a hearing loss disability for VA purposes, the criteria for establishing service connection for bilateral hearing loss have not been met.  38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998).  The benefit sought on appeal is accordingly denied.

ORDER

Service connection for bilateral hearing loss is denied.

____________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs