Citation Nr: 1432575 Decision Date: 07/21/14 Archive Date: 07/29/14 DOCKET NO. 09-26 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service from September 2002 to September 2007. This matter comes to the Board of Veterans' Appeals on appeal from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A copy of the hearing transcript has been associated with the claims file. The Board subsequently remanded the claim in January 2014 to obtain additional private treatment records and a new audiological examination. FINDING OF FACT The Veteran does not have bilateral hearing loss for VA purposes. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an October 2007 letter, so prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. The Veteran's service treatment records (STRs) and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA audiological examinations in February 2008 and March 2014. Thus, VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). At the July 2013 videoconference hearing, the Veteran had an opportunity to provide testimony in support of his claim, facilitated by questioning from the undersigned and his representative. There is no indication that outstanding records or other evidence exists that might support the claim. In January 2014, the Board remanded this claim to obtain additional records and afford the Veteran a VA audiological examination, in part, to determine whether he met the criteria for hearing impairment for VA purposes. Thus, given the development undertaken by VA, the "clarity and completeness of the hearing record [is] intact" and there is no prejudicial error with regard to the hearing officer's duties under section 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010) (holding, in pertinent part, that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends he has bilateral hearing loss as a result of hazardous noise exposure in service, which has previously been conceded. A review of his STRs indicates he had hearing within normal limits on his November 2001 enlistment examination and his August 2007 separation examination, as well as in-service audiograms from September 2002, August 2004, and August 2006. In February 2008, the Veteran had a VA hearing examination that showed puretone thresholds in the right ear of 10 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 15 decibels at 3000 Hertz, and 10 decibels at 4000 Hertz; and in the left ear of 15 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 15 decibels at 3000 Hertz, and 15 decibels at 4000 Hertz. Speech recognition was 98 percent in the right and left ear. The diagnosis was normal hearing with normal middle ear function bilaterally. A private audiogram from June 2013 showed normal to borderline normal hearing levels bilaterally, with excellent word recognition at normal speech levels in quiet. The diagnosis was essentially hearing and middle ear function within normal limits. Additional testing from August 2013 showed the Veteran had adequate hearing to support his communication in quiet; however, he may have trouble hearing and understanding in the presence of background noise when the background noise is at a higher level than the speech. More recently, the Veteran underwent a VA audiology examination in March 2014. An audiogram was performed and his puretone thresholds in the right ear were 20 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 15 decibels at 4000 Hertz; and in his left ear were 20 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 25 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz. Speech audiometry as determined by the Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in each ear. The examiner diagnosed normal hearing bilaterally. Unfortunately, the Veteran's audiometric test results do not avail themselves to the wholly objective threshold of establishing service connection for bilateral hearing loss based on VA regulations. He has not produced any other evidence that can be used to establish current bilateral hearing loss under 38 C.F.R. § 3.385. While the Board is sympathetic to the Veteran's complaints of bilateral hearing loss, there is simply not the requisite evidence to grant the claim at this time. The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed, and that has not been established here. See Degmetich v. Brown, 8 Vet. App. 208 (1995). The Board has considered the statements by the Veteran that he has bilateral hearing loss. Lay evidence concerning symptoms and medical history is competent. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion as to whether he has hearing loss in accordance with VA standards, as this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, his opinion by itself cannot support the claim. See id. Moreover, it is outweighed by the audiological findings shown on the private and VA examinations, as these were conducted by medical professionals. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Therefore, the preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable and that the claim for service connection for bilateral hearing loss must be denied. 38 C.F.R. § 3.102. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs