Citation Nr: 1333268	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  08-08 611	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from December 1977 through October 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which declined to reopen the Veteran's claim for service connection for hearing loss disability.  A timely Notice of Disagreement (NOD) as to that issue was received in September 2007.  After a Statement of the Case addressing that issue was provided in February 2008, the Veteran perfected his appeal in March 2008, via VA Form 9 substantive appeal.  

In April 2008, the Veteran notified VA that he wished to schedule a Board hearing in his appeal.  Later that month, however, he advised that he wished to withdraw his hearing request.  Neither the Veteran nor his representative has made a renewed request for a hearing.

In October 2011, the Board determined that new and material evidence to reopen the Veteran's claim for service connection for bilateral hearing loss disability had been received; however, the underlying service connection claim was remanded for further development, to include contacting the Veteran to ascertain the existence of any additional treatment records; obtaining any additional treatment records identified by the Veteran; obtaining the Veteran's service personnel records; obtaining the Veteran's social security records; providing the Veteran a new VA examination of his hearing loss disability; and readjudicating the matter on appeal.  The Board is satisfied that the directed development has been performed, and is prepared to proceed with its de novo consideration of the issue on appeal.


FINDING OF FACT

The Veteran does not have a hearing loss disability in either ear.






CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. 

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, a pre-rating letter mailed to the Veteran in July 2007 notified him of the information and evidence needed to substantiate his claim for service connection for hearing loss disability.  Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's August 2007 rating decision.  Thus, because the VCAA notice that was provided was legally sufficient, VA's duty to notify has been satisfied.

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  The Veteran's service treatment records, service personnel records, VA treatment records, identified and relevant private treatment records, and social security records have been associated with the claims file.  The Veteran was also afforded a VA examination of his claimed hearing loss disability in January 2012.  This examination, along with the other evidence of record, is fully adequate for the purposes of determining the nature, severity, and etiology of the Veteran's claimed hearing loss disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Service Connection for Hearing loss Disability

In general, 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(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

For the showing of 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.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain listed chronic diseases may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty.  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.

While hearing loss disability is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  To the extent that the evidence suggests that the Veteran has experiences some degree of hearing loss that is sensorineural in nature, the Board will consider whether service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307, 3.309 is warranted. 

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  For the showing of 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."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In addition to the foregoing general principles, service connection for hearing loss disability is not granted unless the claimed hearing loss is of a particular level of severity.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In his various claims submissions and statements, the Veteran asserts generally that he is entitled to service connection for bilateral hearing loss disability.  In support of his claim, he alleges that he performed duties during his active duty service which required him to work with and around a 30 millimeter cannon that was being tested in an underground firing tunnel located at Eglin Air Force Base, Florida.  Indeed, the Veteran's service personnel records show that the Veteran performed munitions maintenance work in an interior ballistics laboratory at Eglin Air Force Base from December 1978 through August 1979.  Also consistent with the Veteran's assertions, these records show further that the Veteran did work regularly with ammunitions, bombs, and other armament.  Hence, the Board finds that the Veteran's claimed acoustic trauma is consistent with the nature of his documented duties during service.

Notwithstanding the above, the evidence in this case shows that the Veteran has never had a hearing loss disability, as defined under 38 C.F.R. § 3.385.  In that regard, repeated audiometric testing performed over the course of the Veteran's active duty service indicated some audiometric shifting; however, none of the in-service audiometric tests revealed pure tone thresholds above 25 decibels at three or more of the frequencies of 500, 1000, 200, 3000, or 4000 Hertz, nor did they show any pure tone thresholds above 40 decibels at any of the aforementioned frequencies.

Likewise, the post-service audiometric records in this case do not indicate audiometric scores that are consistent with a hearing loss disability, as defined under 38 C.F.R. § 3.385.

During private audiometric testing performed in June 2007 at Hearing Healthcare Centers, the Veteran demonstrated the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
20
20
15
LEFT
35
30
15
15
20

Speech discrimination testing was apparently not performed, as such data is not expressed in the record.

Repeated private audiometric testing performed in November 2007 at Glassman's Hearing Aid Service revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
5
30
10
LEFT
35
15
20
20
20

Again, speech discrimination testing was apparently not conducted.

Audiometric testing performed during a June 2012 VA examination revealed the following pure tone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
35
35
LEFT
15
15
15
20
25

Speech discrimination testing performed via the Maryland CNC word list test revealed speech recognition abilities of 96 percent in both ears.  The Board notes that based upon the foregoing data, the examiner diagnosed high frequency sensorineural hearing loss in both ears.  Nonetheless, the foregoing data simply does not indicate hearing loss of such severity that meets the threshold requirement to constitute a disability for VA purposes under 38 C.F.R. § 3.385.  There is no threshold finding of 40 decibels or greater at 500, 1000, 2000, 3000 and 4000 Hertz.  While the right ear had two threshold readings in excess of 26 decibels, neither ear had three or more thresholds of these frequencies that were 26 decibels or greater.  Likewise, the speech recognition scores of 96 percent exceeded the 94 percent or less contemplated by 38 C.F.R. § 3.385.

The Board also notes that VA treatment records in the claims file indicate that the Veteran has been treated periodically for impacted cerumen in his ears.  Nonetheless, these records do not reflect any objective findings or audiometric testing indicating a hearing loss disability, or, any other evaluation or treatment that is relevant to the Veteran's claim.  Similarly, records obtained from the Social Security Administration do not contain any evidence pertinent to the Veteran's claimed hearing loss disability.

While the Board is sympathetic to the Veteran's assertions and has considered his consistent reports of hearing difficulties, in the absence of any evidence showing that the Veteran has a current hearing loss disability as defined by VA regulations, the Veteran's claim for service connection for bilateral hearing loss disability must be denied.  The Veteran, while competent to report what he observes through his senses such as difficulty hearing, is not competent to provide an opinion that his level of hearing difficulty rises to such severity to as be considered a hearing loss disability for VA purposes.  To reiterate, to qualify as a disability for VA rating purposes, hearing impairment must, by regulation, satisfy a threshold level of impairment.  The Veteran, as a lay person, lacks any particular skill or expertise that would render competent audiologic findings.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case).  In light of the foregoing, the Board finds that the any opinion from the Veteran regarding the presence of a current hearing loss disability has no probative value.

The Board assigns greater probative value to the VA audiological examination, which does not contain findings indicative of a current ear hearing loss disability as these examinations were conducted by a licensed audiologist as required by VA regulation. The Board finds that VA medical opinion is of great probative value as it was prepared by a skilled, neutral, and medical professional in the field of hearing after obtaining a history from the Veteran, reviewing the claims folders, and conducting an audiological evaluation. 

In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).

(CONTINUED ON NEXT PAGE)

ORDER

Service connection for bilateral hearing loss disability is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs