Citation Nr: 1333506 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-37 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a left ear hearing disability. ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to February 1985, February 1985 to December 2000, March 2003 to July 2003, and February 2004 to April 2005 with Navy Reserve service thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Philadelphia, Pennsylvania, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. During the pendency of the Veteran's appeal the RO has granted service connection for the Veteran's tinnitus and right ear hearing loss disability. Thus, the Board will only address the Veteran's entitlement to service connection for a left ear hearing loss disabilty. FINDING OF FACT Puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) have been no higher than 5, 0, 0, 25, and 25 (decibels) dB, respectively, for the left ear and speech recognition scores have been no lower than 96 percent for left ear. CONCLUSION OF LAW The criteria for service connection for hearing loss left ear have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran in January 2009, prior to the initial adjudication of his claim in March 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. VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. 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 (2013). In Febuary 2009, the RO requested the Veteran's service treatment records (STRs) and was informed by that the Veteran's particular medical facility that they had custody of the Veteran's service treatment records but did not make copies of service treatment records. Subsquently, in February 2009, the RO informed the Veteran that he would have to make copies of his STRs and submit them to the RO. There was no response from the Veteran, and the RO made a formal finding of unavailability of the Veteran' STRs in March 2009. However, later, in February 2010, the Veteran provided STRs to the RO which included Navy Physical Reports from November 1984 to February 2006. The Board recognizes that the Veteran has identified additional STRs that could be acquired. However, as discussed in more detail below, the Veteran current barrier to entitlement to service connection is a diagnosis of hearing loss that demonstrates a hearing acuity recognized as a disability for VA purposes. Therefore, the Board reasons that any further development of the Veteran's in STRs is not warranted and concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In April 2013, VA provided the Veteran with a medical examination and obtained a medical opinion addressing hearing disability to include his left ear hearing loss had an onset during or was caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's left ear hearing loss. The examiner provided a sufficiently detailed description of this disability, and the examiner provided an analysis to support his opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection for bilateral hearing loss will refutably be presumed if it is manifest in-service to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service but only with respect to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The courts have not explicitly laid out the circumstances in which lay evidence would be sufficient, but the case law suggest that a lay person could note the immediate consequences of an in-service injury. See Trafter v. Shinseki¸ No. 10-3605, slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Merits of the Claim The Veteran contends in his September 2010 substantive appeal that his STRs demonstrate a dramatic and "asymptomatic" hearing loss since service. The Veteran attended a VA examination in April of 2013. The VA examiner administred an audiological examination and an speech discrimination test. In the speech discrimination test the Veteran had results of 96 percent. In the audiological examination puretone thresholds in decibals (dB) were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 25 25 Additionally, the VA examiner administered a bone conduction audiological examination with the following results: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 25 15 The Board draws attentions to 38 C.F.R. 3.385 which defines that impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. There is no evidence of record showing that the Veteran has had a left ear hearing loss for VA compensation purposes as defined by 38 C.F.R. § 3.85 at any time since he filed his claim of entitlement to service connection in December 2008 or at any time contemporaneous to when he filed his claim. In the absence of a current disability, there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir.2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated.); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding "that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency"). To the extent that evidence from VA examiner includes a mention of hearing loss in the left ear, the Board has considered the examination but finds that these documents do not show that the Veteran has a left ear hearing loss disability as defined by 38 C.F.R. § 3.385. For these reasons, the Board concludes that the preponderance of evidence is against a finding that the Veteran has or has had a hearing loss disability for VA disability compensation purposes at any time relevant to his claim and appeal. Hence, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs