Citation Nr: 1339028 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-33 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to December 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In March 2011, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The case was remanded in February 2012 and June 2013. FINDING OF FACT A chronic left ear hearing loss disability was not manifested during service, a left ear sensorineural hearing loss was not compensably disabling within one year of the appellant's separation from active duty, and a left ear hearing loss is not causally or etiologically related to service. CONCLUSION OF LAW A chronic left ear hearing loss disability was not incurred in or aggravated by active service, and a left ear sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's June 2013 Remand, the Appeals Management Center (AMC) scheduled the Veteran for a VA otalaryngological examination. The Veteran failed to report for the examination. In fact, reported in June 2013 and confirmed in August 2013 that he was withdrawing his claim for service connection for left ear hearing loss. Withdrawal of an issue on appeal may be made by the appellant or by his authorized representative in writing. 38 C.F.R. § 20.204. In August 2013, the Veteran was informed that he needed to submit notice of his withdrawal in writing. To date, VA has not received a written withdrawal. Thus, there has not been a proper withdrawal of the issue, and the matter remains in appellate status. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2007 and February 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was readjudicated in October 2012. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The Veteran was provided the opportunity to present pertinent evidence and testimony. During the March 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all service treatment records and all post-service medical records. Service treatment records indicate that the Veteran had hearing within normal limits at entrance examinations in January and November 1977. On examination in April 1982, the Veteran demonstrated left ear hearing above the normal threshold at 3000 Hertz. In May 1983, the Veteran had normal left ear audiometry findings from 500 Hertz to 4000 Hertz. In June 1983, the Veteran showed left ear hearing above normal thresholds at 500 but within normal limits after a minimum of 15 hours noise free. In February 1986, the Veteran showed left ear hearing above normal thresholds at 1000, 3000, and 4000 Hertz. In February 1987, March 1989, March and April 1994, and February 1997, the Veteran had normal left ear audiometry findings from 500 Hertz to 4000 Hertz. Despite findings in service of left ear hearing above normal thresholds, the Board cannot conclude that a "chronic" left ear hearing loss condition was incurred during service. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In addition, on the clinical examinations in February 1987, March 1989, March 1994, and February 1997, the Veteran's left ear hearing was normal. Further, on the Report of Medical History completed by the Veteran in February 1997 in conjunction with his separation physical, the Veteran denied ever having hearing loss. Thus, there is no medical evidence that shows that the Veteran suffered from a chronic left ear hearing loss disability during service. Service connection for sensorineural hearing loss may also be established on the basis of a presumption under the law or by evidence of continuity of symptomatology. However, the first showing of a left ear sensorineural hearing loss was not until 2002, more than a year after the appellant's discharge from active duty. In addition, although the Veteran reported at the June 2009 VA examination that he noted a gradual decline in hearing, he did not report left ear hearing loss since service. In light of the lack of any relevant history reported between 1997 and 2002, service connection is not warranted under 38 C.F.R. § 3.303(b). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the appellant clearly has a current left ear hearing loss disability. Following a June 2009 VA examination, and a review of the claims file, the Veteran was diagnosed with mild left ear sensorineural hearing loss. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional has ever related a left ear hearing loss to the Veteran's military service. The June 2009 VA examiner opined that it was not likely that the hearing loss was related to military service based on medical examination dated in February 1997 which noted hearing sensitivity to be within normal limits through 6000 Hertz and the Veteran's release from active service in December 1997. There is no medical opinion contrary to the June 2009 opinion. As noted above, the matter was remanded in order to afford the Veteran another VA examination to determine the etiology of his left ear hearing loss. The Veteran failed to report. The requested examination was designed to aid in the development of his claim. See 38 C.F.R. § 3.655 (2012); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not ... a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). In this case, the Veteran reported in August 2013 that he did not feel that he had a hearing issue related to service and had expressed an intention to withdraw the claim. Thus, the record is absent evidence of a chronic left ear hearing loss during service, evidence of left ear sensorineural hearing loss within a year following service, evidence of continuity of symptomatology, and medical evidence of a nexus between the Veteran's active duty service and current left ear hearing loss. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs