Citation Nr: 1339972 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-22 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied service connection for hearing loss and tinnitus. In a June 2008 rating decision, the RO granted service connection for a left ear hearing loss disability and tinnitus. The issue of service connection for a right ear hearing loss disability remains on appeal. In December 2010, the Veteran and his wife testified at a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Following that hearing, that VLJ left the Board. The Veteran was informed of this in a July 2012 letter and given the opportunity to have another Board hearing. In September 2012, the Veteran responded that he did not wish to appear at a new hearing and asked the Board to consider his case on the evidence of record. The Board notes that VA medical records were added to the Veteran's electronic Virtual VA folder in November 2013, after the supplemental statement of the case issued in June 2012. However, as those records are not relevant to the issue on appeal, a waiver of Agency of Original Jurisdiction (AOJ) review is not required pursuant to 38 C.F.R. § 20.1304 (2013). The issue of entitlement to service connection for anemia has been raised by the record, but has not been adjudicated by the AOJ. See October 2012 Veteran statement. In addition, in the April 2012 rating decision granting service connection for limited motion of left index, long, and ring fingers, sequalae from laceration on dorsum of proximal interphalangeal joints (non-dominant), the RO specifically noted that residual scarring from the Veteran's laceration injury had not been fully evaluated. Following the May 2012 VA examination for scars/disfigurement, it does not appear that the matter of whether an additional disability rating is warranted for the scarring has been adjudicated. Therefore, the Board does not have jurisdiction over the issues and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have a current diagnosis of right ear hearing loss that meets the criteria of 38 C.F.R. § 3.385 (2013). CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Remand Compliance As noted above, this appeal involves a February 2011 Board remand for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-147 (1999). In this case, the Board finds that the RO substantially complied with the Board's February 2011 remand instructions. In March 2011, the RO contacted the Veteran and requested that he provide the names, addresses, and treatment dates of any private physicians or hospitals that have treated him for his disabilities on appeal, and subsequently obtained and associated private and VA treatment records with the claims file. In addition, the instruction to schedule the Veteran for a VA examination to evaluate his right ear hearing loss following the protocol in VA's Disability Worksheet for VA Audio Examination, and to provide an opinion as to the etiology of any right ear hearing loss, was completed in March 2011. As will be discussed below, the Board finds that the March 2011 examination report is adequate for purposes of evaluating the Veteran's service connection claim. Thus, the Board finds that there has been substantial compliance with the February 2011 remand instructions. II. The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). In the instant case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran of how ratings and effective dates are assigned. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file. In addition, VA afforded the Veteran an adequate examination and obtained an adequate medical opinion in March 2011. The examiner considered the relevant history of the Veteran's condition, provided a detailed description of that condition, and provided an extensive analysis to support the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate). While the Veteran indicated at his December 2010 Board hearing that he is in receipt of disability benefits from the Social Security Administration, he asserted that the disability benefits were awarded for brain damage following a head injury. Accordingly, the Board finds that there is no indication the records are relevant to the claim considered herein and that remand to obtain those records is not necessary. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). As noted above, the Veteran was afforded a hearing before a Veterans Law Judge during which he presented oral argument in support of his claims. He also had a hearing with RO personnel in March 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of 1) the duty to fully explain the issues, and 2) the duty to suggest the submission of evidence that may have been overlooked. Here, it does not appear that the VLJ or the RO official noted the bases of the prior determination or the elements that were lacking to substantiate the Veteran's appellate claims. The RO official did ask where the Veteran was seen for treatment and private medical records were thereafter obtained. Moreover, the testimony of the Veteran and his wife, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claim. The VLJ did ask questions of both the Veteran and his wife to clarify the Veteran's contentions particularly regarding the extent of current hearing loss. Thereafter, another VA examination was conducted. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearings. As noted above, the Veteran additionally responded that he did not wish to appear at a new Board hearing as offered by the VA in July 2012. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been satisfied. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. III. Merits of the Claim The Veteran contends that his right ear hearing loss is related to working on the flight line in close proximity to aircraft while in service. Specifically, he states that he has difficulty hearing conversations when in the presence of background noise. For this reason, he asserts that he is entitled to service connection for a right ear hearing loss disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2013). To establish entitlement to service-connection, a Veteran must show: "(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 - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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) (2013). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and a history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection for hearing loss may be granted where there is credible evidence of significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by the standards of § 3.385 must be currently present to have a ratable disability. Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). With respect to the first element required for service connection, the existence of a present disability, the competent and probative evidence of record shows that the Veteran is not currently diagnosed with a right ear hearing loss disability that comports with VA's definition of disability resulting from hearing loss impairment. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But, according to the laws administered by the VA, impaired hearing will only be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of these frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thus, a Veteran may have hearing loss; however, it may still be insufficient hearing loss to be considered an actual ratable disability by these prescribed VA standards. An examination to evaluate hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and puretone audiometry. 38 C.F.R. § 4.85 (2013). VA treatment records reflect that the Veteran underwent an audiology consultation in April 2008. The results of the audiological test conducted were as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 25 LEFT 25 20 60 70 70 Speech discrimination scores were 100 percent in the right ear and 72 percent in the left ear. The audiologist noted that the Veteran had asymmetrical hearing loss, left ear worse than right ear. Significantly, the audiologist advised the Veteran that he may have to return for testing through compensation and pension as the test was not conducted in accordance with compensation and pension guidelines. Specifically, the April 2008 test was conducted using a smaller booth and monitored live voice rather than recorded speech. The Veteran was provided an ear disease VA examination in June 2008. The examiner reviewed the claims folder, and diagnosed the Veteran with hearing loss and tinnitus, left ear greater than right. The examiner additionally opined that the Veteran's hearing loss and tinnitus are most likely caused by or a result of his in-service noise exposure. Notably, the examiner did not perform audiometric testing. As previously noted in the Board's February 2011 remand, the April 2008 VA audiology consultation did not conduct audiometric testing in accordance with the requirements of 38 C.F.R. § 4.85, such that another examination was to be scheduled. In compliance with the February 2011 remand instructions, the Veteran was afforded a new VA audiology examination in March 2011. The results of the audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 35 LEFT 25 30 60 70 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 74 percent in the left ear. The examiner reviewed the claims file and diagnosed the Veteran with right ear hearing sensitivity within normal limits from 250 Hz through 8000 Hz with the exception of a mild sensorineural hearing loss at 4000 Hz. The examiner additionally opined that though the Veteran has a mild hearing loss in the right ear, "given that his hearing sensitivity remained within normal limits in 2008 and the significant post service noise exposure that he has had, it is less likely as not, that the Veteran's hearing loss in his right ear is related to noise exposure in military service." Although the Veteran has some right ear hearing loss, he does not satisfy the minimum threshold requirements for a hearing loss disability as set forth in § 3.385. Thus, the Board finds that for disability compensation purposes, the Veteran has not met the requirement of showing he has a right ear hearing loss disability according to VA standards at any point prior to or since filing this claim, and service connection is not warranted. As the competent medical evidence of record lacks any evidence that the Veteran has a right ear hearing loss disability, the preponderance of the evidence of record is against the Veteran's claim for service connection. 38 C.F.R. § 3.655(b). Accordingly, the benefit sought on appeal is denied. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a right ear hearing loss disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs