Citation Nr: 1333686	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  08-28 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.


FINDING OF FACT

The Veteran's current bilateral hearing loss is not shown to have been present during his military service, or for many years thereafter, nor is it shown to be the result of any incident therein.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

The RO's May 2006 letter advised the Veteran of the foregoing elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  With respect to the Dingess requirements, the May 2006 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal.  

The duty to assist the Veteran has also been satisfied.  The RO has obtained the Veteran's available service treatment records, and his identified any VA and private treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In March 2012, and again in June 2013, the Board remanded this matter directing the RO to schedule the Veteran for an examination to determine the etiology of his bilateral hearing loss.  In July 2013, a VA examination for hearing loss was conducted and a medical opinion obtained.  See Stegall v. West, 11 Vet. App. 268 (1998).  The VA examination was performed by a VA examiner who reviewed the history of the bilateral hearing loss with the Veteran, examined the Veteran, and included rationale for the conclusions reached.  This examination is adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The Veteran has not claimed that this examination was inadequate.  There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Service connection may be established for disability resulting from personal injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110.  Service connection may also 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.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed 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 or aggravation 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 or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  

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.  38 C.F.R. § 3.385.

Historically, the Veteran served on active duty in the Army from March 1968 to March 1970.  His report of separation, Form DD 214, listed his inservice specialty as artillery.  Thus, the record clearly establishes that the Veteran was exposed to noise during service.

The Veteran's service treatment records are silent as to any complaints or diagnoses of hearing loss.  His March 1970 separation examination noted that his ears were normal on physical examination.  An audiological evaluation performed at that time revealed pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
5
10
LEFT
10
10
0
0
0

In March 2006, the Veteran filed his present claim seeking service connection for bilateral hearing loss.  He attributes his current hearing loss to his inservice exposure to acoustic trauma while serving in artillery.

Post service treatment reports document bilateral senorineural hearing loss beginning in 2006.  VA treatment records in 2006 reference diagnoses of bilateral hearing loss.  Moreover, a VA audiological evaluation, performed in December 2006, concluded with a diagnosis of bilateral sensorineural hearing loss.

Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for bilateral hearing loss.  The Veteran's service treatment records are silent as to any complaint or diagnosis of bilateral hearing loss.  The Veteran's March 1970 separation examination listed his ears as normal.  It also reported normal audiological findings, bilaterally.  See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (finding that normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss).  Moreover, the Veteran denied having any history of running ears or ear trouble on a medical history report completed at that time.

Thereafter, a complaint or diagnosis of bilateral hearing loss was not shown until 2006, over 35 years after the Veteran's discharge from military service.  This period without any complaints or treatment is evidence that weighs heavily against the claim herein.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  

The Veteran can attest to factual matters of which he had first-hand knowledge, such as exposure to loud noise service.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The examiner who conducted the July 2013 VA audiological evaluation opined that it was "less likely than not" that the Veteran's current bilateral hearing loss was related to his military service.  In support of this opinion, the VA examiner cited the normal hearing evaluations shown on the Veteran's entrance and separation examinations.  The VA examiner further noted that a comparison of the Veteran's entrance and separation examinations did not reveal any threshold shifts.  Finally, the examiner indicated that medical literature indicates that noise-induced hearing loss does not support the concept of delayed onset years following exposure to noise.

In its October 2013 Written Brief Presentation, the Veteran's representative argued that the VA examiner in July 2013 based her opinion solely on the basis that the Veteran exhibited no hearing loss at separation.  Contrary to this argument, however, the VA examiner indicated that a comparison of the audiological findings on the Veteran's entrance and separation examinations was conducted after the entrance examination findings were converted from ASA standards, used prior to October 31, 1967, to International Standards Organization (ISO)-American National Standards Institute (ANSI) standards in effect on and after November 1, 1967; and that no threshold shifts shown were shown.  Moreover, the VA examiner further cited medical literature reports in support of her opinion.
 
Consequently, there is no competent evidence linking the current hearing loss to noise exposure during service.  Absent such a nexus, service connection cannot be established.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

The preponderance of the evidence is against the claim for service connection for hearing loss; there is no doubt to be resolved; and service connection is not warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs