Citation Nr: 1410100	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-38 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for residuals of a head injury.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1973 to May 1975. 

This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The issues of service connection for tinnitus and residuals of a head injury are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

The Veteran does not have a hearing loss disability for VA purposes.


CONCLUSION OF LAW

The criteria for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A. § 1110, 5107; 38 C.F.R. §§ 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

In this case, the duty to notify was satisfied by way of a November 2009 pre-adjudication letter, which notified the Veteran of the information and evidence necessary to establish service connection, as well as how VA determines effective dates and disability ratings, and the types of evidence which impacts those determinations.  

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 and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue of hearing loss has been obtained.  The Veteran's available service treatment records, a VA examination report, and lay statements have been obtained.  The Board is cognizant that the record suggests additional service treatment records may be outstanding.  Nevertheless, as discussed below, the threshold requirement of a current disability has not been established.  As any additional service treatment records would be dated over 30 years prior to the Veteran's current claim, they cannot serve to establish a current disability.  Thus, the Veteran is not prejudiced by adjudication of the claim at this time.

The Veteran was also afforded a VA examination in January 2010, which is adequate because the examiner reviewed the claims file, discussed the Veteran's medical history, and supported all conclusions with analyses based on objective testing and observations.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

The Board acknowledges the Veteran's allegation in his August 2010 substantive appeal that the VA examination was "flawed."  However, he did not specify why he believed the examination to be flawed.  There is no indication from the January 2010 examination report that there is any inadequacy with regard to the examination.  On the contrary, the nature, methodology, and scope of the examination are within the purview of the examiner, an audiologist.  There is nothing to suggest the Veteran has any specialized medical or audiological training rendering him competent to determine the adequacy of audiological testing.  See Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009).  

Moreover, as the examination sufficiently informed the Board of both the examiner's judgment on the medical questions at issue and the essential rationale 
for the opinions rendered and was conducted in accordance with 38 C.F.R. § 4.85, the examination is adequate for deciding the Veteran's claim.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012).  Accordingly, VA's duty to provide a VA examination and opinion has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007)


II.  Analysis

The Veteran contends that he currently has hearing loss that is related to service, including acoustic trauma therein.   

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought, specifically a hearing loss disability.  In the absence of proof of a present disability, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Here, the record fails to show that the Veteran has a current hearing loss disability for VA purposes.  The determination of whether a veteran has a current hearing loss "disability" for which service connection can be established is governed by 38 C.F.R. § 3.385.  That regulation states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  

The relevant evidence of record includes a September 2012 VA examination, which fails to show hearing impairment for VA purposes.  Specifically, audiometric testing revealed the following pure tone thresholds, in decibels:



   HERTZ


500
1000
2000
3000
4000
RIGHT
10
10
15
10
20
LEFT
10
10
10
15
30

Speech recognition scores using the Maryland CNC were 96 percent in the right ear and 100 percent in the left ear.  The examiner noted the Veteran's hearing was within normal limits.

The foregoing VA examination provides the only audiometric findings during the period on appeal that are adequate for rating purposes, and those findings do not show a hearing disability for VA purposes.  38 C.F.R. § 3.385 (2013).  See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  

While the Veteran may be competent to state that he has hearing difficulty, as a lay person, he is not competent to diagnose a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, determining whether hearing loss is present to a specified degree requires specialized testing, and there is no indication in the record that the Veteran has any training in the audiological field.  Moreover, the September 2012 VA examination was conducted by an audiologist, included a review of the claims file, audiometric testing, and the Maryland CNC test, and was deemed to produce valid results by the examiner.  Thus, the Board affords this examination significantly more probative weight than the Veteran's lay assertions as to the presence of hearing loss.  

In summary, the objective evidence of record reflects that the Veteran does not have a current hearing loss disability for VA purposes; thus, no further discussion concerning in-service incurrence, nexus, or presumptive service connection is required, as such matters are moot in the absence of a current disability.  Accordingly, in the absence of competent and probative evidence of a current hearing loss disability pursuant to 38 C.F.R. § 3.385, service connection for hearing loss is denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for hearing loss is denied.


REMAND

Further development of the record is necessary prior to adjudication of the Veteran's tinnitus and head injury residuals claims.  

It appears there some service treatment records may be missing.  A May 1991 Navy memorandum contained in his personnel records indicates that a search was done for missing portions of the Veteran's military file, but that health, field, and dental records remained missing.  It also notes that the Veteran's service file was considered "complete for all intents and purposes," and that if any additional documents became available, they would be included in the file.  The Veteran has not been advised that some records may be missing.  

The record contains no medical evidence showing complaints associated with the claimed conditions.  The Veteran should be asked to identify all sources of treatment, VA or private, for tinnitus or head injury residuals, since service.

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain any additional service treatment records through official sources, to include the National Personnel Record Center and Camp Schwab (if possible), or any other appropriate facility.  If any requested records are unavailable, then a determination as to whether additional efforts would be futile should be made and the Veteran should be notified of the inability to obtain such records.

2.  Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have treated him for residuals of head trauma and tinnitus since service.  After securing the necessary release, the RO/AMC should request any records which are not duplicates of those contained in the record.  Additionally, obtain all VA treatment records from the North Texas VA Healthcare System and associate them with the paper or electronic claims file.  If any requested records are not available, the Veteran and his representative, if any, should be notified of such. 

3.  After the above has been completed to the extent possible and any additional development deemed necessary is accomplished, the RO/AMC should again review the record and adjudicate the claims for service connection for residuals of a head injury and tinnitus.  If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs