Citation Nr: 1536389	
Decision Date: 08/25/15    Archive Date: 08/31/15

DOCKET NO.  04-28 733	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to an effective date for the grant of service connection for posttraumatic stress disorder (PTSD), prior to March 16, 2015.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran served on active duty from May 1974 to September 1977. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2002 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2015.

In May 2015, the Board remanded the case for further development.

The decision below addresses the hearing loss service connection claim.  The PTSD effective date issue is addressed in the remand section.


FINDING OF FACT

Hearing loss for VA compensation purposes is not shown.  


CONCLUSION OF LAW

The criteria for establishing service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).

A February 2002 letter satisfied the duty to notify provisions.  In addition, at the Board hearing, the Veteran showed actual knowledge of what is needed to substantiate the claim, including showing that she has hearing loss.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).

The Veteran's service treatment and personnel records have been obtained.  Post-service VA treatment records have also been obtained.  More recent VA treatment records were obtained pursuant to the Board's May 2015 remand.

The Veteran was most recently provided a VA medical examination in June 2015, pursuant to the Board's May 2015 remand.  The examination report is sufficient evidence for deciding the claim.  The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the condition in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation.  Thus, VA's duty to assist has been met.

II.  Service Connection 

Criteria

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed at 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated diseases, including sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 

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, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2015). 

Analysis

The Veteran seeks service connection for hearing loss.  At the March 2015 Board hearing, she testified to hearing loss having its onset during service, to include as a result of working with electronic boxes, as well working on the flight line without hearing protection during service in approximately 1975.  

The Board notes that the Veteran's DD FORM 214 shows that her military occupational specialty (MOS) was Aviation Electronics Technician.  In a Navy Enlisted Ratings Classifications report, VA has acknowledged the MOS as having a moderate probability of hazardous noise exposure.  Moreover, service connection is already in effect for tinnitus, which was determined to be the related to in-service noise exposure.  Thus, in-service noise exposure is established.

The results of audiometric testing at service entrance in November 1973 revealed the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
15
-
10
LEFT
5
10
5
-
5

The results of audiometric testing at separation in August 1977 revealed the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
0
0
5
0
0

Based on the above, hearing loss for VA purposes is not shown during service.  

On VA examination in April 2014, audiometric testing revealed the following pure tone thresholds, in decibels:




HERTZ



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

Speech discrimination was 100 percent on the right and 100 percent on the left.  

In addition, on VA examination in June 2015, audiometric testing revealed the following pure tone thresholds, in decibels:






HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
20
LEFT
15
20
5
5
20

Speech discrimination was 100 percent on the right and 100 percent on the left.  

The examiner stated that results indicated the Veteran's hearing loss was not disabling.  It was noted that although the Veteran's MOS had a high probability of noise exposure, to noise from the flight line, her hearing was normal at separation in August 1977 with no evidence of a standard threshold shift in the right or left ear.  The examiner concluded that it was less than likely that the Veteran's hearing loss is a result of service, to include noise exposure.  In addition, the examiner stated that because the results did indicate a disabling hearing loss, it was less than likely that any hearing loss was aggravated by service-connected tinnitus.  

VA treatment records do not show hearing loss for VA purposes.  Although hearing loss is listed in the Veteran's problem history, the records do not contain audiometric testing showing hearing loss.  Instead, there are references to hearing loss at higher frequencies, such as at 8000 Hz in June 2006.

The Board accepts that the Veteran had loud noise exposure during service and, although the Veteran is competent to report functional complaints of hearing difficulty, she lacks the specialized knowledge, training, and equipment needed to establish the presence of hearing loss under VA regulations. 

Hearing loss for VA compensation purposes was not shown during service or at any time during the appeal period.  38 C.F.R. § 3.385.  In the absence of a current disability, service connection is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

In reaching a determination, the Board has accorded the greatest probative value to the June 2015 VA opinion.  The rationale provided for the opinion is based on objective, findings, reliable principles, and sound reasoning.  Additionally, the other competent evidence weighs against a finding of hearing loss.

In sum, the preponderance of the evidence is against the claim and there is no doubt to be resolved.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Service connection for hearing loss is not warranted. 


ORDER

Service connection for hearing loss is denied.  


REMAND

In a recent July 2015 rating decision, service connection for PTSD was granted, and an initial 100 percent disability rating was assigned, effective March 16, 2015.  In August 2015, the Veteran's representative submitted electronically a standard form application for benefits, which included a "claim" for an earlier effective date for the grant of service connection for PTSD.  

The Board notes that VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014) (includes revision of the format of "notice of disagreement" at 38 C.F.R. § 20.201).

There are no freestanding claims for earlier effective dates.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  The "claim" submitted in August 2015 is best construed as a notice of disagreement (NOD) with the effective date set in the July 2015 rating decision.  The NOD was submitted on a standard VA form, even if not the exact form specified, and it is clear the intent was to appeal for an earlier effective date.  Therefore, the Board finds that the August 2015 submission should be taken as a NOD as to that issue.

The filing of a NOD confers jurisdiction on the Board, and the next step is for the agency of original jurisdiction (AOJ) to issue a statement of the case (SOC).  See Manlincon v. West, 12 Vet. App. 238 (1999).  A SOC pertaining to entitlement to an effective date earlier than March 16, 2015, for the grant of service connection for PTSD, is therefore required.  The Board must remand this issue to the AOJ for the issuance of the SOC.  See 38 C.F.R. § 19.9(c) (2015).

Accordingly, the case is REMANDED for the following action:

Issue a SOC regarding entitlement to an effective date earlier than March 16, 2015, for the grant of service connection for PTSD.  The issue is to be certified to the Board only if a timely substantive appeal is received.  

The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014).




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs