Citation Nr: 1334846	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  11-14 289	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel



INTRODUCTION

The Veteran had over one year of active service, including from June 1985 to August 1985 and from December 1986 to June 1988.

This matter comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The December 2009 rating decision denied entitlement to service connection for hearing loss and tinnitus, among other issues.  In a June 2010 notice of disagreement (NOD), the Veteran contested both the hearing loss and tinnitus determinations.  In a May 2011 rating decision, the RO granted entitlement to service connection for tinnitus.  The Veteran has not expressed disagreement with any aspect of this determination.  Since this represents a full grant of the benefit on appeal concerning this issue, it is no longer in appellate status.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

The Veteran's VA Form 9 reflected his desire to participate in a hearing before a member of the Board.  In a May 2013 letter from VA, the Veteran was notified that he had been scheduled for such a hearing on June 24, 2013.  However, it appears that the Veteran requested that this hearing be cancelled.  Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record.  38 C.F.R. § 20.704 (d), (e) (2012).

There is evidence in the record to raise an informal claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability.  Most recently, in a VA examination, dated November 2009, the Veteran stated that he is unemployed due to his service-connected back disability, and that he receives disability from the Social Security Administration as a result of his condition.  The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability then at issue before the Board, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996).  In this case, the TDIU claim is raised within the context the Veteran's service-connected back disability, which is not on appeal to the Board, thus the Board lacks jurisdiction over the TDIU claim and it is referred below to the RO for further action.

Thus, the issue of entitlement to a TDIU, raised by the record in April 2007 and in November 2009, has not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over the claim and the claim is referred to the AOJ for appropriate action.


FINDING OF FACT

The competent clinical evidence of record reflects that the Veteran does not have bilateral hearing loss disability for VA purposes.  


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist the Veteran in substantiating his claims.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice from VA must inform the Veteran 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 Veteran is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1).  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.  Pelegrini v. Principi, 18 Vet. App. 112  (2004). 

In addition, the notice requirements of the VCAA 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.

Notice was provided to the Veteran, in August 2009 and in October 2009, for his claim of entitlement to service connection for hearing loss.  This notice was provided prior to the initial adjudication of the claim.  The Veteran was notified of the evidence necessary to substantiate the claim, such as treatment records, to include the dates of treatment, findings and diagnoses.  He was also informed that VA would attempt to obtain VA medical records, military records and records from other Federal agencies.  The letter notified the Veteran he should provide information on his current disabilities, information on any injuries, events or diseases that began during service and the relationship between his disabilities and any events, injuries or diseases during service.  The letter also provided general notice regarding how disability ratings are assigned and how effective dates are assigned.  As the content of the notice letter fully complied with the VCAA requirements, the Board concludes that VA satisfied its duty to notify the Veteran.

VA satisfied its duty to assist the Veteran under the VCAA by gathering relevant records.  VA has a duty to assist in obtaining the Veteran's service treatment records (STRs), VA medical records and other relevant records.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c).  The Veteran's STRs and VA medical records are in the file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

Additionally, VA satisfied the duty to assist the Veteran by providing an audiological examination to the Veteran in November 2009.  The November 2009 examination report contained sufficient evidence by which to decide the claim, particularly regarding whether the Veteran had hearing loss disability for VA purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one).  The examiner was provided with the claims file, and the Veteran's history and complaints were recorded.  As such, the examination report is adequate to decide the claim of service connection.  

The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims, (Court) held that, relevant to VA audiology examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in rating a service-connected disability.  The November 2009 VA examination report does not address any functional effects caused by a hearing disability, but the Board, in the decision below, denies service connection, thus there will be no rating.  Therefore, a remand for compliance with Martinak is not warranted.

In sum, the Board finds the record as it stands includes adequate evidence to allow the Board to decide the issue on appeal.  Additionally, the Veteran has not identified any relevant evidence that is outstanding.  Thus, VA satisfied its duties to notify and assist the Veteran with his claim for entitlement to service connection for hearing loss.  As such, appellate review may proceed without prejudice to the Veteran.  

II.  Merits of the Claim

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  To establish service connection on a direct incurrence basis, the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In service connection claims consideration must be given to all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a).

In addition, certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  

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 (2013).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

The Veteran provided statements that he was exposed to loud noise during service. He indicated, at the November 2009 VA audiological examination, that his military noise exposure stemmed from artillery, explosives, aircraft, heavy equipment, radio noise, power tools and diesel engines. Thus, he contends that service connection is warranted for bilateral hearing loss.

A review of the Veteran's STRs do not reveal a diagnosis of hearing loss.  However, there are several complaints of hearing loss and ear pain.  Notably, the November 1986 and May 1988 audiological examinations, contained within the STRs, do not show hearing impairment for VA purposes under 38 C.F.R. § 3.385, nor do they show hearing impairment under Hensley.  The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley, 5 Vet. App. at 159.

The November 2009 VA audiological examination revealed the following puretone thresholds, in decibels:




HERTZ



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

As described above, the November 2009 VA examination report revealed that the Veteran had only one auditory threshold above 26 decibels.  His Maryland CNC test score was 96 percent in each ear.  In this examination, the Veteran was diagnosed with normal to moderately severe sensorineural hearing loss in the left ear and clinically normal hearing in the right ear.  The examiner also opined that the Veteran's hearing loss is less likely than not caused by or a result of military noise exposure.  The audiometric results of the corresponding examination do not show that the Veteran has hearing loss "disability" for VA purposes under the provisions of 38 C.F.R. § 3.385.  During the pendency of the claim or proximate to the claim, it has not been shown that the Veteran has an auditory threshold of 40 decibels or greater for any of the designated frequencies (500, 1000, 2000, 3000, 4000 Hertz), that he has at least three auditory thresholds of 26 decibels or greater for the designated frequencies, or that he has a speech recognition score using the Maryland CNC Test of less than 94 percent.  This is true for both the right and left ears.  

The Veteran has not challenged the accuracy of the November 2009 VA examination report nor has he submitted additional evidence in support of his claim that his reported hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385.  While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity, he is not competent to assess that such hearing loss meets the criteria for hearing loss disability as set forth in 38 C.F.R. § 3.385.  Rather, such may only be established by audiometric testing.  The evidence in this case simply does not support a finding that he currently has a hearing loss disability for VA purposes.  

Diminished hearing is not synonymous with a hearing loss disability for VA purposes and not all hearing loss constitutes hearing loss "disability" for VA purposes.  The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met.  The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability.  See 38 U.S.C.A. § 1131.  The evidence reflects that the Veteran does not have a hearing loss disability for VA purposes.  In the absence of proof of current disability, the claim of service connection may not be granted.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  There has been no finding of a current VA disability proximate to or during the pendency of the Veteran's claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Thus, service connection for bilateral hearing loss is not warranted.

In light of the lack of a current hearing loss disability for VA purposes, a discussion concerning chronicity and/or continuity of symptomatology is unnecessary.  38 C.F.R. §§ 3.303(b), 3.309(a).

For the foregoing reasons, the Board finds that the claim of service connection for bilateral hearing loss must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs