Citation Nr: 1418171 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-17 518 ) 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: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from April 2004 to February 2008 with additional service in the reserves. He had service in the Southwest Asia theater of operations from August 2006 to November 2007. He was awarded the Combat Action Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a January 2014 Board videoconference hearing. A transcript is of record. Following the decision, the Veteran initiated an appeal and the RO issued a May 2011 statement of the case. On substantive appeal received in June 2011, the Veteran perfected appeal specifically for his posttraumatic stress disorder (PTSD) claim. To date, no substantive appeal has been received addressing the service connection claim for bilateral hearing loss. Nevertheless, the RO issued a December 2012 supplemental statement of the case and testimony was taken at the Board videoconference hearing. Consequently, the requirement that the Veteran file a timely substantive appeal has in effect been waived and the Board will thus proceed with appellate review. See Percy v. Shinseki. 23 Vet. App. 37 (2009). Although the appeal also originally included the issue of service connection for PTSD, this benefit was granted by rating decision in November 2012 and is therefore no longer in appellate status. FINDING OF FACT There is no current medical diagnosis of bilateral hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in December 2009. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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). Duty to Assist VA has obtained service and VA treatment records, assisted the Veteran in obtaining evidence, reviewed his electronic files, afforded the Veteran a March 2011 VA examination, and afforded the Veteran the opportunity to give testimony at a Board videoconference hearing. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Service connection may also 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. 38 C.F.R. § 3.303(d). Sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Analysis The Veteran testified at the Board videoconference hearing to combat noise exposure during service. By virtue of his Combat Action Badge, noise exposure is conceded. Service treatment records shows that the Veteran underwent several audiological evaluations in service that reflect normal hearing. However, test results show an upward shift in tested thresholds. On the authorized audiological evaluation in March 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 05 00 00 00 LEFT 05 05 05 05 05 On the authorized audiological evaluation in April 2004 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 05 00 00 00 LEFT -- 05 05 05 05 On the authorized audiological evaluation in December 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 LEFT 20 10 20 10 15 Reserve records show that on authorized audiological evaluation in October 2009, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 10 LEFT 15 5 15 5 15 In an October 2009 pre-deployment health assessment, the Veteran expressed concern for hearing loss. Although the Veteran's service treatment records do not contain show hearing loss for VA purposes, as noted above, acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Even if there were no in-service threshold shift, the provisions of 38 U.S.C.A. § 1154(b) are applicable and the Veteran's assertions of combat-related bilateral hearing loss are accepted despite the lack of supporting documentation in service treatment records. The Veteran, however, must still submit evidence establishing a casual nexus between an in-service event and his current disability. See Kessel v. West, 13 Vet. App. 9 (1999). Significantly, post service records do not show a current disability meeting the requirements of 38 C.F.R. § 3.385. A March 2008 VA treatment record notes normal hearing. An August 2010 VA treatment record shows that he denied hearing loss. When the Veteran was afforded a VA examination in March 2011, the examiner found that hearing was clinically normal bilaterally. On the authorized audiological evaluation in March 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 10 5 LEFT 5 5 10 10 10 Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 96 percent in the right ear, which the examiner described as excellent. When asked at the Board videoconference hearing whether his hearing had worsened, the Veteran responded, "...I hadn't noticed anything. The audio technician said it was low tone noises. I don't experience them at all really in my daily activities. So it's not something I would notice." When asked how his hearing affected him, the Veteran noted problems with conversations. The Veteran denied use of hearing aids. The Board acknowledges the Veteran's complaints. However, it is important to understand that by regulation, VA compensation may only be granted for hearing loss disability as defined by 38 C.F.R. § 3.385. Here, current findings did not show auditory thresholds 40 decibels or greater; or 26 decibels or greater in at least three of the frequencies; or any speech recognition scores that were less than 94 percent. Overall, the Veteran does not have a present disability. Therefore, based on the competent medical evidence of record, the Board must conclude that the Veteran does not have bilateral hearing loss. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs