Citation Nr: 1337791	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  12-08 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

J. All, Associate Counsel







INTRODUCTION

The Veteran had active duty for training from October 2005 to March 2006, and active military service from July 2007 to August 2007, from June 2008 to September 2008, and from February 2010 to June 2010.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

The Veteran was scheduled for a Board videoconference hearing in August 2013, but did not appear and did not indicate any desire to reschedule.  As such, the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2013).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file revealed documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran does not have a left ear hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

The criteria for a grant of service connection for left ear hearing loss are not met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 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

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the instant case, VA's duty to notify has been satisfied through the notice letter dated September 2010, which fully addressed all notice elements.  This letter informed the Veteran of what evidence was required to substantiate his claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.

The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Service treatment records are associated with the claims file.  All post-service treatment records and reports identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  Additionally, the Veteran was provided a VA ear disease examination in March 2011 and an audiology consultation in April 2011.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  The Board finds these examinations adequate for the purpose of evaluating the Veteran's hearing loss, as they involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, and a review of relevant symptomatology related to the disability on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Federal Circuit has held that while the Board must review the entire record, it does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Except as otherwise provided by law, the Veteran has the responsibility to present and support his claim for benefits.  In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to disease or injury incurred or aggravated in service.  38 C.F.R. § 3.303(d).  It is not enough, however, that an injury or disease occurred in service; there must be a chronic disability resulting from that injury or disease.  To prevail on the issue of service connection, there must be competent evidence of "(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).

Service connection may also be established on a presumptive basis for certain chronic diseases listed in 38 C.F.R. §3.309(a), including sensorineural hearing loss (an organic disease of the nervous system).  See Opinion of VA Under Secretary for Health, dated October 4, 1995.  Unless clearly attributable to intercurrent causes, presumptive service connection may be awarded if a listed chronic disease manifests itself and is identified as such either in service or within the specified presumptive period, and the Veteran presently has the same disease.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013).  If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after separation is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336.

The Veteran seeks service connection for left ear hearing loss as a result of his exposure to aircraft noise during service.

A hearing loss disability is defined with regard to audiometric testing involving puretone frequency thresholds and speech discrimination criteria.  38 C.F.R. § 3.385.  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, or 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.  Id.  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Service records reveal that the Veteran's hearing was tested on a regular basis.  The first audiometric test was at the Veteran's Air Force National Guard enlistment examination in July 1989, the results of which showed normal hearing.  Physical examination reports dated July 1993 and October 1998 also showed normal hearing in the Veteran's left ear.  National Guard records indicated that the Veteran was enrolled in a hearing conservation program from 1997 to 2010.  The audiometric test results from this program showed normal hearing in the left ear and no significant threshold shifts as compared to a November 1997 reference audiogram.  See audiograms dated November 1997, September 1998, September 1999, June 2000, July 2003, September 2004, August 2005, June 2006, June 2007, April 2008, March 2009, and June 2010.

The Veteran was afforded a VA audiology consultation in April 2011, the report of which noted the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
NA
NA
NA
NA
NA
LEFT
10
15
20
20
25

Speech recognition was 98 percent for the left ear based on the Maryland CNC Test.

None of the aforementioned audiological evaluations of the left ear showed that the auditory thresholds in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hz were 40 decibels or greater; or that the auditory threshold for at least three of the frequencies from 500 to 4,000 Hertz were 26 decibels or greater; or a speech recognition score of less than 94 percent.  Consequently, the Board must find that the Veteran does not have a hearing loss disability of the left ear, as defined by VA regulation.

The Veteran claims that his left ear hearing loss is due to noise exposure during his active duty service; however, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997).  In this case, the record does not reflect that the Veteran has a hearing loss disability of the left ear as defined by 38 C.F.R. § 3.385.  The Board recognizes that the requirement of a current disability may satisfied where the claimant's disability was present at any point during the pendency of a claim, even if no disability is present at the time of adjudication.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The record here, however, does not reflect a left ear hearing disability, as defined by VA regulation, at any time during the pendency of the claim.

For these reasons, the Board concludes that the preponderance of evidence is against a finding that the Veteran has or has had a left ear hearing loss disability for VA disability compensation purposes at any time relevant to his claim and appeal.  Hence, the appeal must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Entitlement to service connection for left ear hearing loss is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs