Citation Nr: 1337544 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-20 895A ) 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 Appellant represented by: Sandra King, Agent ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in August 2011, a statement of the case was issued in August 2012, and a substantive appeal was received in August 2012. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Bilateral hearing loss did not manifest during or within a year following service, and is not otherwise related to service. CONCLUSION OF LAW Service connection is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements must also apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A March 2011 letter prior to a June 2011 rating decision explained the information necessary to prove entitlement to service connection, the types of evidence VA would assist the Veteran in obtaining, and his responsibility to identify relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied. The Veteran has received all essential notice, has had ample opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). VA's duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). Pertinent treatment records have been obtained, along with relevant lay statements. VA provided an audiological examination in June 2011, and the report is included in the claims file. The June 2011 examination is adequate for rating purposes, as the etiological opinion therein is supported by clear rationale which considers the entire claims file. The Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Legal Criteria, Factual Background and Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in 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. §§ 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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). 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; 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. The Board notes, at the outset, that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the United States Court of Veterans Appeals (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The determination as to whether the criteria for service connection are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If a fair preponderance of the evidence is against the claim, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service records indicate the Veteran held a military occupational specialty (MOS) in Airlift Aircraft Maintenance. At enlistment, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 5 0 0 0 0 During service, the Veteran participated in a hearing conservation program. The program involved audiological examination on five occasions. On examination in August 1982, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 15 10 5 15 20 On examination in November 1982, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 5 5 5 5 10 On August 1983 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 0 0 LEFT 10 10 5 10 5 On September 1984 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 15 LEFT 10 5 5 15 10 On September 1985 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 0 0 LEFT 10 10 5 5 10 At separation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 5 0 0 5 On the authorized audiological evaluation in February 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 60 60 70 LEFT 20 25 25 60 60 On the authorized VA audiological examination in June 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 65 65 70 LEFT 25 25 30 65 65 Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 96 in the left ear. During the June 2011 examination, the Veteran reported military noise exposure to aircraft noise with the use of hearing protection. Following separation, he reported working in garden maintenance from 1985 to 2000, with occasional exposure to lawn mower noise. The June 2011 VA examiner opined that the Veteran's hearing loss was less likely as not due to or a result of military noise exposure, specifically because "serial audiograms from enlistment to separation reveal normal hearing sensitivity with no significant threshold shifts." The issues of a current disability and in-service noise exposure are not in dispute here; bilateral hearing loss under 38 C.F.R. § 3.385 is present and the Veteran has reported noise exposure during service, which is consistent with his MOS. However, there is no evidence of record which demonstrates a causal relationship between his current disability and service. Bilateral hearing loss was not diagnosed during service, and did not manifest to a compensable degree in the first post-service year. Nonetheless, the Veteran may still prevail by showing his current hearing loss is causally related to his in-service noise exposure. However, no evidence of record demonstrates such a relationship. The June 2011 VA examiner's negative nexus opinion is the only one of record, and is negative to the Veteran's claim. The Board does acknowledge that the audiometric thresholds reported on various tests during service did show some upward shifts at different times. However, the examiner was of the opinion that such shifts were not significant. The Board finds that the examiner's professional judgment as to what constitutes a significant shift so as to suggest a decrease in hearing acuity is entitled to considerable weight. As just mentioned, there is no contrary opinion of record. Moreover, the examination report reflects that the examiner had knowledge of the Veteran's personal medical history, and the details of his service. The opinion was offered after a demonstrated review of the entire claims file. It is of great probative value. The Board finds the June 2011 VA examiner's opinion persuasive. Accordingly, the Board finds the preponderance of the evidence indicates the Veteran's bilateral hearing loss did not manifest during or within a year following service, and is not otherwise causally related to in-service noise exposure. As such, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. Gilbert, 1 Vet. App. at 55. ORDER Service connection for bilateral hearing loss disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs