Citation Nr: 1402575	
Decision Date: 01/17/14    Archive Date: 01/31/14

DOCKET NO.  11-13 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


ATTORNEY FOR THE BOARD

L. Pelican, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1979 to March 1982.

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2010 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the benefit sought on appeal.

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.


FINDING OF FACT

The evidence does not show that the current bilateral sensorineural hearing loss disability is etiologically related to a disease, injury, or event in service or that it manifested to a compensable degree within one year of discharge from service.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed 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, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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 claims.  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) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013).

The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

All notice under the VCAA should generally be provided prior to an initial 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). 

Here, prior to the initial rating decision in this matter, a letter from VA dated December 2009 notified the Veteran of how to substantiate a service connection claim, informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim, and informed him how ratings and effective dates are assigned.  Therefore, the duty to notify is satisfied. 

VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013).

Here, the Veteran's service treatment records and VA medical records are in the claims file.  He has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c) (2013).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2013).  In this case, the Board concludes an examination is not needed.  VA has a duty to provide a VA examination when the record lacks sufficient competent evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As will be discussed in greater detail below, the Board finds that there is no evidence suggesting an association between the Veteran's bilateral sensorineural hearing loss and any event, injury, or disease in service.  The service treatment records do not reflect that the Veteran had hearing loss in service, there is no competent medical evidence indicating there may be a link between current hearing loss and service, and the Veteran has not reported continuity of symptomatology since service.  Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim.

Additionally, the Veteran has declined the opportunity to present testimony before a Veterans Law Judge.  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  Accordingly, VA's duty to notify and assist under the VCAA is satisfied, and the Board may proceed with appellate review.

Analysis

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2013).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A.         §§ 1101, 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  In the instant case, there is no presumed service connection because the Veteran's hearing loss disability did not manifest to a compensable degree within one year of service and, indeed, was not diagnosed until eight years after service.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service-connected.  Id at 159.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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).

Here, the Veteran alleges that he has current bilateral hearing loss due to military service.  However, the Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss.

On his August 1978 enlistment examination for the Army, a clinical evaluation of the Veteran's ears was normal.  Audiometry revealed puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
10
20
10
LEFT
30
20
10
10
5

The service treatment records do not include any other audiometric test results.

VA treatment records indicate the Veteran underwent an Audiology and Speech Pathology Service audiology assessment in January 2010.  The examiner diagnosed the Veteran with mild to moderate sensorineural hearing loss of the right ear and normal hearing in the left ear from 250-500 and at 8000 Hz and sensorineural hearing loss from 1000 to 6000 Hz.  Upon audiological evaluation, the pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
40
50
45
LEFT
25
30
30
45
55

Speech audiometry revealed speech recognition ability of 95 percent in the right ear and of 100 percent in the left ear.

With respect to the first Hickson element, a current disability, the Veteran has a current bilateral sensorineural hearing loss disability.  In addition, his hearing loss meets the requirements of 38 C.F.R. § 3.385 (2013) as the Veteran has auditory frequencies in both ears that are 40 decibels or greater.  Thus, the first Hickson element of a current disability is satisfied.

With respect to the second Hickson element, in-service incurrence, the Veteran has not specifically claimed that the hearing loss began while he was in service.  In a January 2010 statement, the Veteran wrote that he was responsible for prisoner physical training while at Fort Gordon and that he did so in a confined space.  Yet the Veteran did not indicate that he suffered traumatic or excessive noise exposure or hearing loss as a result of his duties nor does the evidence otherwise indicate such exposure.  Additionally, in an August 2005 VA treatment note, the Veteran reported that his hearing loss began in 1990, and became worse since 2002.  Thus, the record contains no evidence of in-service diagnosis of or treatment for bilateral sensorineural hearing loss, or other in-service illness, injury, or event.  For these reasons, the Board finds that the second Hickson element is not satisfied, and the Veteran's claim fails on this basis.

With respect to the third Hickson element, the medical evidence does not show there may be a nexus to service nor does the Veteran indicate that he experienced symptoms in service which have continued thereafter.  Accordingly, the third Hickson element is not met, and the claim would fail on this basis as well.

The Board acknowledges the Veteran's assertions that his bilateral sensorineural hearing loss is the result of his military service.  Certainly, the Veteran is competent to report sensory or observed symptoms and continuity of symptoms.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  He generally is not, however, competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his bilateral sensorineural hearing loss and his military service.  Thus, his statements regarding any such link are not competent.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).

In sum, the Board concludes that the preponderance of the evidence is against the claim, and that service connection for bilateral hearing loss is not warranted.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.



____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs