Citation Nr: 1341395	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  08-01 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for bilateral hearing loss.   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel



INTRODUCTION

The appellant served on active duty in the United States Navy from October 1965 to October 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  The issues that were appealed were entitlement to service connection for a perforated tympanic membrane of the left ear, bilateral hearing loss, and tinnitus.  

In March 2008, the appellant was afforded a hearing at the RO before a Decision Review Officer (DRO), and a transcript is of record.

In July 2011, the Board granted service connection for the residuals of a perforated tympanic membrane of the left ear.  The remaining two issues were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  The purpose of the remand was to obtain additional medical evidence.  The record reflects that upon obtaining the requested information, the AMC, in May 2012, awarded service connection for tinnitus but continued to deny the appellant's claim for entitlement to service connection for bilateral hearing loss.  The claim has since been returned to the Board for review.   



FINDINGS OF FACT

VA audiological test results do not show puretone thresholds, at 500, 1000, 2000, 3000, and 4000 Hertz, at 40 decibels or greater; or auditory thresholds for at least three of the frequencies at 26 decibels or greater; or speech recognition scores using the Maryland CNC Test at less than 94 percent in either the left or right ear.   



CONCLUSION OF LAW

A current bilateral hearing loss disability for VA benefit purposes was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).

The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA.  The record indicates that the appellant was provided notice in a letter sent to him from the RO in January 2007 and then again by the AMC in July 2011. The letters informed the appellant that VA would assist him in obtaining any documents that it was made aware thereof that would assist in the decision-making process of the claim.  He was further told that he could proffer any documents or statements in support of his claim, and that all items would be considered when a decision on the merits of his claim was made.  He was also informed how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

All that the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

VA also fulfilled its duty to assist.  In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated by, and those other records that VA was made aware thereof.  Given the foregoing, the Board finds that VA has substantially complied with the duty to procure the necessary medical and other records.

Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  In this respect, the Board did seek to obtain such an opinion concerning the existence and etiology of any found hearing loss.  The September 2011 report involved a review of the claims folder and the appellant's available medical records, and the results of an actual examination of the appellant.  Therefore, the Board finds that this report is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)(affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim.

II.  Service Connection-Hearing Loss

The appellant requests service connection for hearing loss of both ears.  He avers that since service, he has not been able to hear as well and he believes this loss of hearing is the result of his military service or an incident of service.  To support his claim, the appellant has submitted written statements and he has undergone testing through the VA regional office.

A.  Governing Law and Regulations

Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002).  In order to establish service connection for the claimed disorder, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

With respect to the first requirement of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity.  For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013).

Even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

Organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the service member's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  In this matter, there is no evidence of record showing that the appellant sought treatment for or was diagnosed as having hearing loss of either ear within one year of his discharge from service.  As such, the presumption is not applicable in this case.  

B.  Factual Background and Analysis

Turning to the merits of the claim, a review of the appellant's service treatment records does not show evidence of hearing loss as defined by VA regulations during his active duty service.  These records reveal that the appellant underwent an audiological examination in October 1967, prior to his discharge.  A whispered voice test was accomplished which revealed hearing acuity of 15/15.  The Board notes however that the whispered voice test is not an assessment of hearing acuity at the time of discharge consistent with 38 C.F.R. § 3. 385 (2013).  No audiometric test results were reported on the October 1967 separation examination.

In conjunction with his claim for benefits, the appellant underwent a VA audiological examination in September 2011.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
25
20
LEFT
20
15
15
20
20

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  The appellant's left and right hearing was categorized as being within normal limits.  The audiometric findings with respect to both ears do not show a hearing disability as defined by VA regulations.  See 38 C.F.R. § 3.385 (2013).  There are no other measurements of the appellant's purported hearing loss contained within the claims folder.  

Given the above evidence, the Board finds that service connection is not warranted for bilateral hearing loss.  Pursuant to 38 C.F.R. § 3.385 (2013), the appellant has not been shown to have impaired hearing, because the auditory thresholds in all of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are not 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater; and the speech recognition scores using the Maryland CNC Test are not less than 94 percent.  The appellant has not submitted any competent clinical evidence that contradicts the findings from the September 2011 VA examination or objective evidence showing a current right or left ear hearing loss disability.  As the medical evidence does not indicate current a current bilateral hearing loss disability, the Board does not even reach the question of whether the claimed disorder is related to the appellant's military service.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . .  In the absence of proof of present disability there can be no valid claim.").  Thus, because the appellant has not demonstrated a current diagnosis of hearing loss of either the right or left ear conforming to the requirements of 38 C.F.R. § 3. 385 (2013), service connection must be denied.

The only evidence of the claimed hearing loss is the appellant's own assertions.  The Board does not question the appellant's sincerity in his belief that service connection is warranted for hearing loss in both ears.  Although 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 medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or meeting the criteria for hearing loss pursuant to VA regulations.  Cromley v. Brown, 7 Vet. App. 376, 379 (1995).  Essentially it is beyond the appellant's competency to diagnose hearing loss.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

For the foregoing reasons, the claim of service connection for bilateral hearing loss must be denied.  The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs