Citation Nr: 1333951 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-48 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1966 to February 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. He perfected appeals as to both of these issues. During the pendency of the appeal in a July 2013 rating decision, the RO granted service connection for right ear hearing loss disability and assigned a noncompensable evaluation effective March 31, 2009, and tinnitus and assigned a 10 percent disability evaluation effective March 31, 2009. As this represents a full grant of benefits sought, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluations or effective dates assigned. See 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). FINDING OF FACT The Veteran does not currently have left ear hearing loss disability for VA compensation purposes. CONCLUSION OF LAW Left ear hearing loss disability was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in April 2009, prior to the May 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The April 2009 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran indicated that there were treatment records from the VA Medical Center in Kansas City from January 1982 to December 1982. In a February 2013 memorandum, the RO made a formal finding on the unavailability of those VA treatment records, and indicated that all efforts to obtain those records had been exhausted and further attempts would be futile. The Board observes that in a February 2013 letter the Veteran was notified of the unavailability of these treatment records and was afforded an opportunity to supplement the record with additional evidence. To date, he has not done so. While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). Therefore, the Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA audiological examination in April 2013. A review of the VA examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board concludes that the examination report of record is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312 The Veteran has declined to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Left Ear Hearing Loss Disability The Veteran essentially contends that he has a current left ear hearing loss disability related to acoustic trauma during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss disability may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, this presumption does not apply as discussed below. 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, 4000 Hertz is 40 decibels or greater; 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 (2013). With respect to Hickson element (1), current disability, the Veteran was afforded a VA audiological examination in April 2013, the report of which noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 30 25 25 30 20 Speech recognition was 100 percent in the left ear. The examiner noted that although the Veteran had sensorineural hearing loss in the left ear, it was at a level that was not considered to be a disability for VA purposes. The Board finds that based on the evidence of record that the Veteran does not currently have left ear hearing loss disability for VA compensation purposes. The only relevant evidence of record is the April 2013 VA examination report and as outlined above there is no indication that the Veteran has auditory thresholds of 40 decibels or greater, or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or speech recognition scores less than 94 percent. 38 C.F.R. § 3.385 (2013). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for left ear hearing loss disability is not warranted. The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, the question as to whether the specific degree of the Veteran's left ear hearing loss meets the criteria for hearing loss for VA compensation purposes is a complex medical question unlike testimony as to his experiencing the symptoms of decreased hearing generally. Likewise, it is different from a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation. See Jandreau, 492 F.3d at 1376 (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). That is, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings. See 38 C.F.R. § 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he experiences, he is not competent to ascertain his level of hearing loss as such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight to the April 2013 VA audiological testing results rendered by a trained medical professional. The Board acknowledges that the Veteran has been granted service connection for right ear hearing loss and tinnitus based on acoustic trauma during service, and the April 2013 VA examiner indicated that preexisting bilateral hearing loss disability was aggravated beyond normal progression during service and tinnitus was related to military noise exposure. However, the Veteran does not have the level of hearing impairment in the left ear required under VA regulations for a grant of service connection. This action, however, does not preclude the Veteran from being entitled to service connection for left ear hearing loss in the future should the degree of hearing loss worsen to meet the hearing acuity contemplated by the applicable regulations. At that time, the Veteran may file to reopen his claim for service connection for left ear hearing loss disability. At this time, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for left ear hearing loss disability is not warranted. ORDER Service connection for left ear hearing loss disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs