Citation Nr: 1333253 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-30 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his Wife ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2010, the Veteran testified before the undersigned Veterans Law Judge during a travel board hearing. A transcript of the proceeding has been associated with the claims file. The Veteran's claim was remanded in March 2011 for a new VA examination and to update the claims file with the most recent VA treatment records. The Board finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDING OF FACT The Veteran does not currently have a right ear hearing loss disability as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110 , 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in a May 2008 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection for hearing loss including what he needed to provide and what would be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records, private treatment records and VA treatment records including the most recent following the March 2011 remand. The Veteran has not identified any outstanding evidence. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran was afforded VA examinations in connection with his claim in August 2008 and in April 2011 following the Board's remand. The examiners reviewed the Veteran's claims file, recorded the Veteran's subjective complaints, and provided the proper objective tests including an audiogram and the Maryland CNC speech discrimination for each ear. The examination reports were thorough, detailed and supported by an adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is warranted. II. Service Connection for Right Ear Hearing Loss The Veteran claims that he currently has hearing loss in his right ear and because he is service connected for his left ear, the Board should resolve the benefit of the doubt in his favor and grant service connection for his right ear. He contends that his hearing loss began when he was in boot camp on the rifle range and was impacted by experiencing an explosion in his bunker in Vietnam and having a mortar round explode three feet from him. To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". When a condition may be diagnosed by its unique and readily identifiable features, such as a broken leg or a dislocated shoulder, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The regulation at 38 C.F.R. § 3.385 defines hearing loss disability for VA purposes. Hearing loss is only considered a disability when an audiological examination reveals that the threshold level in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the 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. 38 C.F.R. § 3.385. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for right ear hearing loss. This is because there is no evidence of a current hearing loss disability for VA purposes and the existence of a current disability is a non-discretionary criteria necessary for entitlement to service connection. An August 2008 audiogram reflected pure tone decibels as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 10 10 20 25 Left Ear 15 10 10 25 50 Speech recognition scores were 94 percent for the left ear and 94 percent for the right ear. The examiner found normal hearing in the right ear with a mild to moderate loss at the higher frequencies, specifically 6000 Hz and 8000 Hz. The test results for the right ear were not consistent with a disability for VA purposes. At his hearing in October 2010, the Veteran testified that his right ear hearing had gotten worse. The claim was remanded for another examination to assess the severity, nature and etiology of his right ear hearing loss. An April 2011 audiogram reflected pure tone decibels as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 10 15 20 30 Left Ear 20 15 15 25 55 Speech recognition scores were 94 percent for the left ear and 96 percent for the right ear. The examiner opined that it was as least as likely as not that the Veteran's mild right ear hearing loss was caused by or the result of military noise exposure. The examiner noted that the Veteran's hearing was normal at the time of his entrance into the military and that "separation results were those of the informal whispered voice stimuli type." He concluded that there was "no way to determine whether a significant threshold shift might have occurred on active duty when using informal stimuli for the ultimate exam" and "it would be more appropriate to give benefit of doubt to the veteran in the right ear as it was in the left ear by the rating officer." However, the objective audiometric findings reflect that the Veteran does not have a current hearing loss disability for VA purposes in the right ear. While there appears to have been some loss of hearing acuity in the right ear, until such loss meets the criteria for a disability under 38 C.F.R. § 3.385, there can be no entitlement to service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran does not have a disability in his right ear as defined by VA regulations. Therefore, the Board cannot grant his claim under any theory of entitlement. The Board does not question the Veteran's sincerity in his belief that service connection is warranted for right ear hearing loss. However, without evidence of a current hearing loss disability as defined by VA regulations, a preponderance of the evidence is against the Veteran's claim. The benefit of the doubt doctrine does not apply, and the claim for service connection for right ear hearing loss must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for right ear hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs