Citation Nr: 1338388	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-30 388	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel







INTRODUCTION

The Veteran served on active duty from March 2004 to March 2008.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in part, denied the Veteran's claim of service connection for bilateral hearing loss.


FINDING OF FACT

The Veteran is not currently shown to have a bilateral hearing loss disability by VA standards. 

CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by the Veteran's active military service, and it may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  

In this appeal, the RO provided notice to the Veteran in an April 2008 letter prior to the date of the issuance of the appealed October 2008 rating decision.  The April 2008 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision.  The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran.  Additionally, he was afforded a VA examination in July 2008, which appears to be thorough and adequate on which to base a decision.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Service Connection Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

If certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Factual Background and Analysis

The Veteran contends that he has a current hearing loss disability related to service.  He specifically claims that he was exposed to loud noise during his service in the Gulf War as he was a field radio operator who was exposed to artillery and gunfire.  In one particular instance, the Veteran was 20 to 30 feet away from an improvised explosive device (IED) detonating and he claims that his hearing has not been the same since this incident.

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 Tests are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran's service treatment records are negative for treatments or complaints related to hearing loss.  

Audiometric testing at the Veteran's entrance examination in January 2004 revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
10
5
5
LEFT
10
5
10
10
5


Audiometric testing at the Veteran's examination in March 2004 revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
5
-5
LEFT
0
5
5
0
-5

Audiometric testing at the Veteran's examination in February 2007 revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
-5
-5
0
LEFT
5
0
0
0
-5

Audiometric testing at the Veteran's separation examination in January 2008 revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
-5
5
LEFT
0
5
5
0
-5

The treating examiner noted that the Veteran had steady noise exposure.

The Veteran underwent a VA audiological examination in July 2008.  The examiner listed the findings of the service treatment record audiograms and noted that a 2005 Post Deployment record noted "sometimes" for exposure to loud noises.  The examiner noted that the Veteran served 2 tours in Iraq in the United States Marine Corps where he had noise exposure to artillery and constant gunfire mostly with hearing protection.  However, as the radio operator he would have to take off his hearing protection when a command arrived in order to be able to communicate.  He would then have to block his ears with his fingers if the guns went off which was not always possible.  In one instance, an IED exploded 20-30 feet away from the Veteran on his right side and since that time he has not heard well from his right ear.  He denied any pre-military noise exposure or any recreational noise exposure.

Audiometric testing in July 2008 revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
0
15
LEFT
0
0
-5
-10
0

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  

The examiner noted that the tympanometry was within normal limits bilaterally, suggestive of normal middle ear function at this time.  The examiner noted that while both ears are clinically normal for hearing, the Veteran's right ear was slightly poorer.

Considering the claim for service connection for bilateral hearing loss, in light of the record and the governing legal authority, the Board finds that the claim must be denied.

Based upon review of the record and the Veteran's contentions, it is conceded that the Veteran indeed had noise exposure during service.  However, the post-service evidence demonstrates that the Veteran does not have a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition score was not less than 94 percent.  See 38 C.F.R. § 3.385.  

The Board appreciates the Veteran's contentions and statements related to his claimed bilateral hearing loss.  Even conceding that the Veteran was exposed to significant noise in service, the evidence does not show a bilateral hearing loss disability by VA standards.  

Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110.  Thus, where, as here, competent and persuasive medical evidence establishes that the Veteran does not have a right ear hearing loss disability for which service connection is sought, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for a grant of service connection-competent evidence of the currently-claimed disability-has not been met. 

With respect to the Veteran's contention that he currently has bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  As a layperson, the Veteran is competent to report that he experiences difficulty hearing.  However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. 

Absent evidence of a current bilateral hearing loss disability diagnosis , the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.





ORDER

Entitlement to service connection for bilateral hearing loss is denied.


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



Department of Veterans Affairs