Citation Nr: 1341599	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  08-16 831	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for bilateral hearing loss, to include as secondary to the service-connected tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 2004 to May 2005.  During his active military service, he was awarded the Combat Action Ribbon.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in June 2011.  A transcript of the hearing is associated with the claims file.  

In September 2011 and March 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development.  The appeal has now been returned to the Board for appellate disposition. 

The Veteran's paperless claims files were also reviewed and considered in preparing this decision, along with his paper claims file. 


FINDING OF FACT

The Veteran does not have sufficient hearing loss in his ears to be considered a disability by VA standards.


CONCLUSION OF LAW

Service connection for bilateral hearing loss is not established.  38 U.S.C.A. 
§§ 1101, 1110, 1112, 1113, 1137, 1154, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

I.  VA's Duties to Notify and Assist

Under applicable law, VA has a 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 or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  A letter from the RO dated in September 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The letters was provided prior to the initial RO adjudication of his claim.  

The Board notes that the Veteran has not been provided a VCAA notice letter specifically addressing the requirements for secondary service connection.  However, the Board finds that the Veteran, through his representative, demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO and communications to the Board.  The Board finds that there is no prejudicial error.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Moreover, the Veteran has not alleged any prejudicial error in the content or timing of the VCAA notice he received.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claim.  Thus, absent this pleading or showing, the duty to notify has been satisfied in this case.

Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs, personnel records, and post-service VA and private treatment records have been obtained.  The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal.  Therefore, the Board does not need to make an attempt to obtain these records.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran participated in VA examinations in March 2007 and October 2011, the results of which have been included in the claims file for review.  A VA addendum medical opinion was also provided in January 2012.  The examinations involved thorough examinations of the Veteran and opinions that were supported by sufficient rationale.  Therefore, the Board finds that the examinations are 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 the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

Furthermore, the Veteran was afforded a Board hearing in June 2011.  A Board member has two duties at a hearing:  (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim; and, (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See 38 C.F.R. § 3.103(c)(2) (2013); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)).

Here, during the hearing, the AVLJ specifically noted the issue as entitlement to service connection for bilateral hearing loss.  The Veteran was assisted at the hearing by an accredited representative from The American Legion.  The AVLJ noted the element of the claim that was lacking to substantiate the claim for benefits (i.e., a current bilateral hearing loss diagnosis per VA regulations).  The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim.  In addition, the representative and AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the element necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits.  As such, the Board finds that the AVLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error.

The Board is also satisfied as to substantial compliance with its September 2011 and March 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The remands included obtaining the Veteran's recent VA treatment records, which were obtained and associated with the claims file.  The remands also directed the AMC to make attempts to obtain the Veteran's private treatment records.  The AMC sent the Veteran two letters dated in September 2011 and March 2012, which provided him with the appropriate release form (VA Form 21-4142) to obtain his confidential records from his private physicians.  The Veteran, however, did not return the release forms, and all other evidence that he has indicated as relevant to his claim has been obtained.  The remands also included contacting the Veteran's private physician and determining whether the 2011 audiometric testing was performed by a state-licensed audiologist.  This action was accomplished in a May 2012 phone conversation between VA and the private treatment provider.  The AMC was also directed to provide the Veteran with a VA examination and medical opinion by a state-licensed audiologist.  These were obtained in October 2011 and January 2012, respectively.  Finally, the remands included readjudicating the claim, which was accomplished in the January 2012 and May 2012 Supplemental Statements of the Case (SSOCs).  

The Board notes that the Veteran's representative, in the October 2013 IHP, argued that VA did not comply with the prior remand directives.  Specifically, the representative argued that the Veteran was not provided a "proper audiological exam by a licensed audiologist."  However, as detailed above, the Veteran was afforded a VA examination by a state-licensed audiologist in October 2011.  Thus, the Board finds that there has been substantial compliance with its remand directives.  Id.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Service Connection

The Veteran seeks service connection for bilateral hearing loss, to include as secondary to the already service-connected tinnitus.

To establish direct service connection, the record must contain:  (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury.  In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service.  38 U.S.C.A. §§ 1110.

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d).  

Service connection for certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, will be presumed if they manifest to a compensable degree within one year following the active military service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  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).   See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).

For the showing of a 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).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability.  Id.

The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006.  Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected.  In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury.  These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder.  See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).

It appears as though the new regulatory amendment poses a new restriction on claimants.  Nonetheless, because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, as this version is more favorable to the Veteran.  See generally VAOGCPREC 7-03 and VAOPGCPREC 3-00.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

Taking the first element of service connection (under either a direct or secondary theory of service connection), the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  However, according to VA standards, impaired hearing must be of a certain level to be considered a disability.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  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 the military service.  However, a hearing loss disability by these standards must be currently present.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley, 5 Vet. App. at 157.

Here, private treatment records document audiometric testing in May 2011 and June 2011.  The private testing appears to indicate that the Veteran currently has bilateral hearing loss that meets the criteria listed in 38 C.F.R. § 3.385.   However, the record does not show that the audiometric test was performed by a state-licensed audiologist, as required by 38 C.F.R. § 4.85 (2013).  In this regard, the Board remanded the appeal for this fact to be ascertained.  In May 2012, VA contacted the private treatment provider and was informed that "none of the doctors at the [A.F.C.] are State licensed audiologist."  There is no evidence to the contrary to show that the 2011 testing was performed by a state-licensed audiologist, as required under the regulation.  Thus, the Board is unable to accept these private audiological tests as evidence that the Veteran has bilateral hearing loss that meets the requirements to be considered a VA disability under 38 C.F.R. § 3.385.  See 38 C.F.R. § 4.85.  

In contrast, the Veteran was afforded two VA audiological examinations conducted by state-licensed audiologists.  


At the March 2007 VA audiological examination, audiometric testing yielded the following findings:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
25
14
LEFT
5
5
15
20
11

Using the Maryland CNC test, the speech recognition score was 100 percent in each ear.  

At the October 2011 VA audiological examination, audiometric testing yielded the following findings:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
25
30
25
LEFT
15
25
25
30
24

Using the Maryland CNC test, the speech recognition score for the right ear was 100 percent and the speech recognition score for the left ear was 96 percent.  

In January 2012, the October 2011 VA examiner provided a VA addendum medical opinion.  Following a review of the claims file, the VA examiner determined that the October 2011 VA examination revealed hearing that is not at the level to suggest an impairment or disability for VA rating purposes.  Therefore, the examiner concluded that the hearing acuity of the Veteran does not reflect hearing loss.

The remaining treatment records in the claims file do not provide evidence of a current bilateral hearing loss diagnosis as defined under 38 C.F.R. § 3.385.

Thus, a current bilateral hearing loss disorder as defined under 38 C.F.R. § 3.385 is not shown by the evidence of record.  The Veteran has not met his threshold preliminary evidentiary burden of establishing he has sufficient hearing loss disability in his ears.  Without this required proof of a current disorder, the claim for bilateral hearing loss necessarily fails.  See Degmetich v. Brown, 8 Vet. App. 208 (1995), 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has a disorder existing on the date of application, not for a past disorder); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disorder is satisfied when the claimant has disorder at the time a claim for VA disability compensation is filed or during the pendency of the claim).  

In reaching this decision the Board has considered the Veteran's arguments in support of his assertions that his bilateral hearing loss is related to his military service.  His arguments of decreased hearing acuity are credible and consistent with the evidentiary record.  Clearly, the Veteran was exposed to acoustic trauma in service.  However, for determining a hearing loss disability for VA purposes, the Board places greater probative weight to the findings of the state licensed audiologists who performed audiometric and word recognition testing using a standardized VA-wide format which are objectively measurable and consistent.  

The Board notes that it derives its jurisdiction to decide issues of fact and law under 38 U.S.C.A. § 7104.  Pursuant to 38 U.S.C.A. § 7104(c), the Board is bound in its decisions by the regulations of the Department, instructions of the Secretary and the precedent opinions of its chief legal officer.  Quite simply, the Board is bound by the definition of "disability" contained at 38 C.F.R. § 3.385.  The Board can only determine whether the Veteran meets all of the requirements of the benefit being sought and, if he is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

The Board further notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, the Veteran's claim of entitlement to service connection for bilateral hearing loss, to include as secondary to the service-connected tinnitus, is not warranted.


ORDER

The claim for service connection for bilateral hearing loss, to include as secondary to the service-connected tinnitus, is denied.



____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs