Citation Nr: 1338296 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-03 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 2003 to August 2007. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the case was later transferred to the RO in Columbus, South Carolina. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDING OF FACT A bilateral hearing loss disability has not been present at any time during the pendency of the claim. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter provided to the Veteran prior to his discharge from the military, as part of VA's Benefits Delivery at Discharge Program; the Veteran acknowledged that he received notice about the evidence or information needed to substantiate his claim in May 2007. The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, VA obtained the Veteran's service treatment records and his post-service medical evidence. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. He was also provided with appropriate VA examinations, with the first occurring in May 2007. Pursuant to a December 2011 Remand, the Veteran was provided an additional examination in May 2012. The Board finds that there has been substantial compliance with the December 2011 Remand directives and finds the VA examination reports to be adequate with which to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Despite the arguments presented by Veteran's representative to the contrary, there is no indication that additional development is needed in this case, as the evidence pertaining to the period of the claim fails to show a hearing loss disability as defined by VA regulation. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. § 1110; 38 C.F.R. § 3.303. 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). Where a Veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims that he currently has bilateral hearing loss due to his active duty service. As an initial matter, the Board notes that in-service noise exposure has been conceded based on the Veteran's service personnel records confirming his occupational specialty as an Amphibious Assault Vehicle crewman. The Board also notes that the RO awarded service connection for tinnitus based on the Veteran's in-service noise exposure. Service treatment records include a September 2002 enlistment report of medical examination showing that the clinical examination of the Veteran's ears was negative. On the audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 10 LEFT 5 5 10 5 0 The Veteran underwent an additional audiological examination in August 2003, at which time pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 5 5 LEFT 10 10 15 10 5 A May 2004 hearing conservation audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 LEFT 20 15 20 10 20 An additional hearing conservation audiological examination conducted in May 2005 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 5 0 LEFT 5 5 10 0 5 An April 2007 report of medical assessment shows the Veteran's report of hearing loss. He underwent a hearing conservation audiological evaluation on April 10, 2007, which shows hearing thresholds that meet the criteria for hearing loss as defined by VA regulation. The audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 20 25 10 LEFT 25 20 40 35 20 The Veteran underwent an additional audiological evaluation the next day, on April 11, 2007, which also showed hearing thresholds that meet the criteria for a hearing loss disability as defined by VA regulation. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 20 35 25 LEFT 45 15 25 30 30 In May 2007, the Veteran underwent a QTC examination for his service connection claim, at which time he reported noticing a decrease in his hearing after returning from Iraq. The audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 15 10 15 15 15 Speech audiometry revealed speech recognition ability of 100 percent for both ears. The examiner provided a diagnosis of normal bilateral hearing for VA criteria, as the Veteran's hearing thresholds failed to meet the criteria for a hearing loss disability. During a May 2012 VA examination, the Veteran reported sometimes experiencing difficulty clearly hearing conversational speech. The examiner noted the Veteran's history of in-service noise exposure, as well as recreational noise exposure. The audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 15 10 LEFT 10 10 15 10 10 Speech audiometry revealed speech recognition ability of 96 percent for the right ear and of 94 percent in the left ear. Based on examination results, the examiner provided a diagnosis of normal hearing, bilaterally, and he noted that the Veteran had normal hearing in both ears at all test frequencies. He determined that the Veteran's current hearing status in both ears did not meet the criteria for a disability under VA regulations. Based on the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. In this regard the Board notes that without proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no audiological evidence of the presence of hearing loss disability for VA purposes during the pendency of the claim. Although the April 2007 in-service audiological evaluations show that his hearing thresholds met the criteria to be considered a hearing loss disability under 38 C.F.R. § 3.385, subsequent examinations conducted in service in May 2007 and post-service in May 2012 failed to show hearing loss disability in either ear. The Board does not question the Veteran's sincerity in his belief that service connection is warranted for hearing loss. While he is certainly competent to relate events in service and after service, and to describe the extent of any current symptomatology, there is no evidence that he possesses the requisite expertise necessary to establish that he has sufficient hearing impairment to qualify as a disability for VA purposes. Moreover, even if the Board were to concede that the Veteran is competent to state that he has sufficient hearing impairment to qualify as a disability, the medical evidence prepared by skilled professionals is clearly of greater probative value than the Veteran's statements. In reaching this decision, the Board has considered the benefit-of-the-doubt rule, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs