Citation Nr: 1335827	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  11-28 566	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Houston, Texas


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Martinez, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1963 to May 1965.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran initially requested a hearing, but later withdrew his request in September 2013.  Thus, his hearing request is deemed withdrawn.  38 C.F.R. 20.704(d) (2013).


FINDING OF FACT

The Veteran does not have right ear hearing loss, as defined by VA regulation.


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1111, 1131, 1132 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  In May 2011, the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded.

Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and it complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

The Board also finds that the duty to assist requirement has been fulfilled.  All relevant, identified, and available evidence has been obtained; specifically, the Veteran's service treatment records and VA examination reports are in the file.  The Veteran has additionally submitted a private treatment record and it has been associated with the file.  The Veteran has not referred to any additional existing evidence that is necessary for a fair adjudication of the claim which has not been obtained.

The record reflects that the Veteran underwent two VA examinations to evaluate his claimed hearing loss in July 2011 and October 2012.  The reports from those examinations and the medical opinions have been included in the claims file for review.  These examinations and opinions involved a review of the claims file, a thorough examination of the Veteran, and opinions supported by rationale.  The Board finds that these examinations are adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  

The Board concludes that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000).

II.  Service Connection

The Veteran contends that he has right ear hearing loss as a result of in-service noise exposure in the artillery.  He claims service connection is warranted.

Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service.  To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1132; 1133 (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309 (2013).

Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2013).  The provisions of § 3.303(b) apply only to the list of chronic disabilities under § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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).

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for right ear hearing loss; the Veteran does not have right ear hearing loss for VA purposes.

A July 2011 VA examination record revealed the following pure tone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
25
35
20

Speech audiometry revealed speech recognition ability of 94 percent in the right ear.

An October 2012 VA examination record revealed the following pure tone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
30
20

Speech audiometry revealed speech recognition ability of 100 percent in the right ear.

The findings of both of these VA examinations indicate that the Veteran does not have impaired hearing in the right ear, as defined by VA regulation.  38 C.F.R. § 3.385 (2013).

The Board notes that an August 2012 private audiogram reflects findings of right ear hearing loss which purportedly meet VA standards under § 3.385.  However, the Board affords it little probative value in light of the two VA examinations, discussed above, which occurred shortly before and after this private examination and which consistently found no right ear hearing loss for VA purposes.

Accordingly, the preponderance of the evidence demonstrates that the Veteran does not have and has not had right ear hearing loss for VA purposes during the entire period on appeal; his claim for service connection for right ear hearing loss must be denied.

In reaching this determination, the Board acknowledges the Veteran's active service in the artillery and has considered his contentions that he suffers from right ear hearing loss of in-service onset.  In addition, the Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that a veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a veteran may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim.  Nonetheless, as little probative value is accorded to the private examination findings, the Board finds that the Veteran has not had right ear hearing loss for VA purposes under § 3.385 at any time during the pendency of his claim.

Because the Veteran does not have a right ear hearing loss disability, as defined by VA regulation, service connection may not be granted for right ear hearing loss.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (holding that there can be no valid claim for service connection in the absence of a current disability).  Because there is a preponderance of the evidence against the claim, reasonable doubt may not be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).



ORDER

Service connection for right ear hearing loss is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs