Citation Nr: 1340951 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-46 950A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to January 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2009 and August 2009 of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The January 2009 RO decision denied service connection for left ear hearing loss. The August 2009 RO decision denied service connection for right ear hearing loss. The RO has developed the issue on appeal as entitlement to service connection for left ear hearing loss. However, in multiple statements throughout the pendency of the appeal, including subsequent to the January 2009 and August 2009 RO decisions that denied service connection for left ear hearing loss and right ear hearing loss, respectively, the Veteran has made clear that he was actually pursuing a claim for entitlement to service connection for bilateral hearing loss. For example, in his May 2009 notice of disagreement, as to a January 2009 decision that denied service connection for left ear hearing loss, the Veteran indicated that he disagreed with the denial of service connection for bilateral hearing loss. In a November 2010 statement, the Veteran maintained that the noise from working around jet engines caused his (bilateral) hearing loss. In a November 2010 VA Form 21-526b, the Veteran reported that he was reopening a claim for entitlement to service connection for bilateral hearing loss. Additionally, in an October 2013 informal hearing presentation, the Veteran's representative specifically listed the issue as entitlement to service connection for bilateral hearing loss. In light of the overwhelming evidence of record, the Board will address the issue on appeal as entitlement to service connection for bilateral hearing loss. FINDING OF FACT A bilateral hearing loss disability has not demonstrated. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. August 2008, October 2008, June 2009, and December 2010 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R § 3.159(b)(1). Those letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c) (2). VA examinations were conducted in October 2008 and December 2012. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. 38 C.F.R. § 3.385 defines what constitutes a hearing loss disability. 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, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Veteran contends that he has bilateral hearing loss that is related to service. He specifically maintains that he served as an aircraft electronic and environmental system journeyman during service and that he was exposed to deafening noise from jet engines all the time. He also reports noise exposure from loud equipment. The Veteran indicates that the hearing protection that he was provided with during service was inadequate. He states that he had no non-military noise exposure. The Veteran essentially reports that his bilateral hearing loss was first experienced during service and has continued since service. The Veteran served on active duty from May 1990 to January 1994. His DD Form 214 indicates that he had no foreign service and no sea service. His occupational specialty was listed as an aircraft electronic and environmental system journeyman. He served in that position for three years and six months. The Veteran's service treatment records do not show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385 (pursuant to the enlistment examination and several audiological evaluations). There is no evidence of record of hearing loss within the year after service as required for a presumption of service connection. The first post-service evidence of any possible bilateral hearing loss and tinnitus is in October 2008. An October 2008 VA audiological examination report noted that the Veteran's claim file was not provided for review. The Veteran reported that he had suffered from a constant, bilateral, ringing tone in his ears since his period of service. He stated that the ringing tone was more noticeable in quiet settings. It was noted that the Veteran served as an aircraft electrician in the Air Force for four years. The Veteran indicated that he had noise exposure from aircraft and loud equipment. He stated that he used hearing protection most of the time. He denied that he had any non-military noise exposure. The Veteran reported that he had some dizziness when he began in the service. The examiner reported results that were not indicative of a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. As to diagnoses, the examiner indicated that the Veteran's hearing was considered to be within normal limits through 4000 Hertz, with excellent word recognition ability and a normal conversational volume. The examiner stated that the Veteran did report a constant, bilateral, ringing tone in both ears that began while he was in the service. The examiner remarked that as the Veteran's claim file was not available for review, an opinion could not be provided. In an October 2008 addendum to the October 2008 VA audiological examination report, the examiner reported that the Veteran's claim file was reviewed. The examiner stated that an audiogram dated in March 1990 (at the time of the Veteran's March 1990 enlistment examination) indicated hearing within normal limits from 500 Hertz to 6000 Hertz in both ears. The examiner stated that subsequent audiograms dated from March 1991 through January 1994 indicated hearing within normal limits, bilaterally, from 500 to 6000 Hertz. The examiner commented that it was her opinion that the Veteran's (bilateral) hearing loss was not caused by or related to noise during his period of service as an aircraft electrician as the claimed condition did not exist per the examination in October 2008. A May 2009 treatment report from M. E. Kramer, M.D., noted that the Veteran complained of tinnitus since his service in the Air Force in the 1990s. The Veteran indicated that he had aircraft engine noise exposure without ear protection. Dr. Kramer reported that the Veteran had mild high frequency hearing loss at 6000 Hertz in the left ear. An May 2009 audiological examination report from the LaJolla Medical and Surgical Center, and associated with the May 2009 treatment report from Dr. Kramer, showed results that were not indicative of a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. A December 2012 VA audiological examination report noted that the Veteran's claims file was reviewed. The examiner reported results that were not indicative of a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. The examiner indicated that the results showed a sensorineural hearing loss (in the frequency range of 500 to 4000 Hertz) in the Veteran's right ear and left ear, respectively. The diagnoses were hearing loss and tinnitus. The examiner maintained that the Veteran's (bilateral) hearing loss was not at least as likely as not (50 percent or greater probability) caused by an event in his military service. The examiner reported that a "separation" audiogram in June 1993 indicated that the Veteran had hearing within normal limits from 500 to 4000 Hertz, bilaterally, with no significant shift in thresholds from the time of his (March 1990) enlistment examination. The examiner stated that in a 2006 study by the Institute of Medicine (Noise and Military Service Implications for Hearing Loss and Tinnitus), it was concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner stated that, therefore, it was less likely as not that any hearing loss at rating frequencies which was present was the result of military noise exposure. The Board notes that there is no current evidence indicating a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The evidence does not demonstrate a bilateral hearing loss disability at any time during the pendency of the appeal, and thus service connection is not warranted. The examiner, pursuant to a December 2012 VA audiological examination report, indicated that the results showed a sensorineural hearing loss (in the frequency range of 500 to 4000 Hertz) in the Veteran's right ear and left ear, respectively. However, the actual audiological results reported at the time of the December 2012 examination were not indicative of a hearing loss disability in either the Veteran's right ear or his left ear as defined by 38 C.F.R. § 3.385. The evidence of record simply does not reflect bilateral hearing loss, for VA purposes, pursuant to 38 C.F.R. § 3.385. The preponderance of the evidence is against the claim for entitlement to service connection for bilateral hearing loss; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs