Citation Nr: 1451663	
Decision Date: 11/21/14    Archive Date: 11/26/14

DOCKET NO.  12-14 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to June 1967, including service in the Republic of Vietnam.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for bilateral hearing loss.  

The Veteran's June 2012 substantive appeal also included the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and entitlement to service connection for tinnitus.  Service connection has been granted for each of these disabilities, and the Veteran has not filed a notice of disagreement with regard to the effective date or the rating assigned.  These issues are thus not before the Board.  


FINDING OF FACT

The Veteran does not currently suffer from hearing loss as defined by VA.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2014).   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.  

A letter of April 2009 satisfied the duty to notify provisions.  This letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  The claim was subsequently readjudicated, most recently in an August 2014 supplemental statement of the case.  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  A VA examination was conducted in August 2014; the record does not reflect that this examination is inadequate for rating purposes.  Instead, the examination contains sufficient information to determine whether service connection is warranted.  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  

II.  Service Connection for Bilateral Hearing Loss

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

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, 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.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The Veteran did not complain of or seek treatment for bilateral hearing loss during his active service.  That said, the Veteran served in a combat battalion during his tour in Vietnam.  In his May 2010 notice of disagreement, the Veteran stated that he was exposed to noise - without hearing protection - from guns and artillery during his time in Vietnam.  He reiterated these contentions at his August 2014 VA examination.  Given the Veteran's service in Vietnam and his credible testimony, the in-service incurrence criterion is satisfied.  

Despite this evidence of in-service noise exposure, service connection for bilateral hearing loss is not warranted, as the Veteran's hearing has not deteriorated to a point to be considered a disability for VA purposes.  

At an August 2014 VA examination, pure tone thresholds, in decibels, were recorded as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
5
15
20
LEFT
15
15
15
20
35

Word recognition scores of 96 percent were recorded in both ears.  

The results of this examination do not support a finding that the Veteran has a current hearing loss disability for VA purposes.  His auditory thresholds were less than 40 at every relevant frequency, he did not have three frequencies at 26 decibels or greater, and his speech recognition scores were greater than 94 percent.   

There is no other competent evidence showing that the Veteran currently suffers from bilateral hearing loss.  The Veteran contends that he suffers from hearing loss that is related to his active service.  Although the Veteran is competent to describe the dates of onset of his hearing loss and to describe its effects on his daily life, the actual diagnosis of hearing loss relies on audiometric testing and requires specialized training or knowledge.  The Veteran is not shown to have such training or knowledge, and he is not competent to provide such a diagnosis.  Jandreau, 492 F.3d at 1377.

The preponderance of the evidence is against the claim for service connection for bilateral hearing loss; there is no doubt to be resolved; and service connection for bilateral hearing loss is not warranted.  


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  



____________________________________________
M. N. HYLAND 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs