Citation Nr: 1333766 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-14 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hearing loss disability in the right ear. 2. Entitlement to service connection for hearing loss disability in the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1966, with additional service in the Army Reserve. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for hearing loss disability in the left ear is addressed in the REMAND that follows the ORDER section of this decision. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDING OF FACT Hearing loss disability in the right ear has not been present at any time during the pendency of the claim. CONCLUSION OF LAW Hearing loss disability in the right ear was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in May 2009. The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, VA obtained the Veteran's service treatment records and his post-service medical evidence. He was also provided with an appropriate VA examination in March 2012. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Where a Veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims that he currently has hearing loss in the right ear due to in-service noise exposure. He asserts that he experienced noise exposure from simulated explosion demonstrations, gunfire, and industrial noise. The Veteran claims to have experienced trouble with his hearing since service. Service treatment records are negative for reported symptomatology or diagnoses related to a hearing loss disorder. In addition, the report of a January 1966 separation examination shows that the clinical examination of the Veteran's ears was negative. On the January 1966 separation report of medical history, the Veteran denied having any ear, nose or throat trouble, or running ears. On the audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 RIGHT 15 (30) 10 (20) 10 (20) 5 (10) The January 1966 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). Following his separation from active duty, the Veteran's hearing was later assessed for his enlistment into the Army Reserve. On a March 1978 report of medical history, the Veteran denied having hearing loss or ear, nose or throat trouble. The March 1978 report of medical examination shows that the clinical examination of his ears was negative. The associated audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 0 5 5 The Veteran's hearing was also assessed in April 1982 during his reservist service. He denied having hearing loss on an April 1982 report of medical history. An April 1982 report of medical examination shows that the clinical examination of his ears was negative. The audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 5 10 A November 2009 VA audiology note includes the Veteran's report of a history of noise exposure. The functional assessment of his hearing showed that his hearing acuity was within normal limits through 4,000 Hertz in the right ear. Audiometric test results were not reported. A March 2012 VA audiological examination report further documents the Veteran's report of difficulty hearing and his history of in-service noise exposure. He reported that he first noticed hearing loss following his military service. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 15 25 Speech recognition score was 94 percent in the right ear. The clinical test results failed to show a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The examiner determined that the Veteran's hearing was normal in the right ear from 250 to 4,000 Hertz. Based on the evidence of record, the Board finds that service connection for hearing loss in the right ear is not warranted. In this regard the Board notes that without proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Court has held that the requirement for service connection that a current disability be present 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 though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no audiological evidence dated in service or after the Veteran's separation from the military showing that he has a right ear hearing disability for VA purposes. 38 C.F.R. § 3.385. The Board does not question the Veteran's sincerity in his belief that service connection is warranted for right ear hearing loss. While he is certainly competent to relate events in service and after service, and to describe the extent of any current symptomatology, there is no evidence that he possesses the requisite expertise necessary to establish that he has sufficient hearing impairment in the right ear to qualify as a disability for VA purposes. Moreover, even if the Board were to concede that the Veteran is competent to state that he has sufficient hearing impairment in the right ear to qualify as a disability, the medical evidence prepared by skilled professionals is clearly of greater probative value than the Veteran's statements. In reaching this decision, the Board has considered the benefit-of-the-doubt rule, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for hearing loss disability in the right ear is denied. REMAND Unfortunately, a remand is required with respect to the Veteran's left ear hearing loss claim. The March 2012 VA examination revealed that the Veteran has left ear hearing loss disability as defined by 38 C.F.R. § 3.385. The VA examiner provided a diagnosis of moderate to severe sensorineural hearing loss in the left ear beginning at 4,000 Hertz. The examiner indicated that the claims file was reviewed and stated that the January 1966 service treatment record showed normal hearing bilaterally. The examiner then opined that it was less likely than not that the Veteran's hearing loss was due to noise exposure during service. Thus, it appears that the basis of the examiner's opinion against the claim is the absence of hearing loss shown at that the time of the Veteran's separation from active duty. The Board finds the March 2012 medical opinion to be inadequate with which to decide the Veteran's claim because it does not address the theory of delayed or latent onset of hearing loss. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, an additional opinion is needed so that the examiner can provide an opinion on whether the Veteran's left ear hearing loss is due to in-service noise exposure on a delayed or latent onset theory of causation. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Thereafter, the RO or the AMC must provide the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file to the examiner who performed the March 2012 audiology examination, or an appropriate substitute if the March 2012 examiner is unavailable, for review. Following a review of this evidence, the examiner should opine whether there is a 50 percent or better probability that the Veteran's hearing loss in the left ear is related to his active service, to include in-service noise exposure. The examiner must convert the Veteran's January 1966 pure tone thresholds from ASA standards to ISO-ANSI standards prior to rendering any opinion. In rendering the opinion, the examiner must be mindful that although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. The Veteran need not be re-examined unless the person providing the requested opinion determines that an additional examination is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim for service connection for left ear hearing loss disability. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the case is returned, if so indicated, to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs