Citation Nr: 1750159	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  11-19 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Farrell, Associate Counsel







INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from October 1983 to October 1986 and from June 1989 to April 1998, including service in Iraq.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Veteran, in his June 2011 appeal to the Board, requested a video-conference hearing, which was scheduled to be held at the RO in July 2017.  However, the Veteran did not appear for the hearing and the Board has not received a request to postpone or reschedule the hearing.  Therefore, this appeal will proceed as though the request for a hearing has been withdrawn.  38 C.F.R. § 20.702(d) (2017).

Since the Veteran filed his request to reopen the claim of entitlement to service connection for bilateral hearing loss, VA received relevant official service department records that were in existence prior to the final rating decision of October 2007, but were not associated with the Veteran's claims file until well after the final decision.  As such, the claim is being adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received.  See 38 U.S.C. §§ 1110, 1131; (West 2014); 38 C.F.R. §§ 3.303, 3.156(c) (2017).  Notably, the RO granted service connection for left ear hearing loss disability in an October 2016 rating decision and such award represents a complete grant of the benefits sought.

FINDING OF FACT

A right ear hearing loss disability for VA purposes is not currently demonstrated.





CONCLUSION OF LAW

The criteria to establish service connection for a right ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017).

The Veterans Claims Assistant Act of 2000 (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

Prior to the rating decision on appeal, the Veteran was provided a VCAA notice letter in March 2009.  The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, including what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA.  He was also notified as to how disability ratings and effective dates are assigned.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In view of the foregoing, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, the Board finds that the Veteran received all required notice concerning his claims.

In addition, the Board finds that VA has satisfied its duty to assist the Veteran in obtaining his service treatment records (STRs), pertinent post-service treatment records, and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran had the opportunity to present evidence and provided statements in support of his claim.  VA complied with all assistance provisions of the VCAA.  The Veteran was afforded VA audiology examinations to determine the level and etiology of any current hearing loss.

As noted above, the Veteran's June 2011 appeal included a request for a video-conference hearing before the Board.  However, the Veteran did not appear for the hearing that was scheduled in July 2017.  There is no indication from the record that notice of the scheduled examination was not sent to him at his last known address.  The law presumes delivery through the regularity of the administrative process "in the absence of clear evidence to the contrary."  Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992); see Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  Further, neither the Veteran nor his representative has asserted that he did not receive notice of the scheduled hearing.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be established 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).  In the absence of proof of a present disability, however, there necessarily can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

For 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, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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.  By contrast, the threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

When all the evidence is assembled, it is the Board's responsibility to evaluate the evidence, determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim.  38 U.S.C.A. §§ 5107; 7104(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3.

Here, the Veteran claims service connection for right ear hearing loss due to in-service noise exposure.  The Veteran's service separation forms show that while on active service his military occupational specialty (MOS) from October 1983 to October 1986 was "Military Police," and his MOS from June 1989 to April 1998 was "Food Service Specialist."  The Veteran reported that he was exposed to noise during service on a firing range and from an enemy rocket attack in Iraq.  Based on the nature of the Veteran's MOS, and other evidence of record, the Board finds that the Veteran was exposed to some degree of acoustic trauma while in active service.  Indeed, he is currently service connected for a left ear hearing loss disability.

However, in this case, the record does not show current hearing loss in the right ear sufficient to qualify as a disability for VA purposes.  

A VA "Audiology Consult" report dated May 2012 includes no auditory thresholds at the frequencies set forth in VA regulations, 500 to 4000 Hz, but reflects a mild to moderate drop in the Veteran's audiometric results at 6000 and 8000 hertz, and notes that the Veteran's right ear speech recognition was "excellent," but does not indicate which test standard was used for the assessment.  However, as noted above, frequencies above 4000 hertz are outside the spectrum specified by VA regulations in determining whether a veteran has a hearing loss disability.


In January 2013, the Veteran underwent a VA-sponsored ("QTC") audiological examination.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
20
25

Right ear speech discrimination score was 100 percent.  These audiometric test results do not establish a disability for VA purposes.  38 C.F.R. § 3.385.  

An additional VA-sponsored audiological examination conducted in August 2016 found that the Veteran's right ear speech discrimination score was 100 percent, the puretone auditory threshold was no greater than 35 decibels from 500 to 4000 hertz, and only two thresholds exceeded 26 decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
15
30
35

Therefore, the Veteran's most recent audiometric test results also do not establish a disability for VA purposes.  38 C.F.R. § 3.385.  

Although the Veteran sincerely believes that he has a right ear hearing disability related to active service and lay persons are competent to provide opinions on some medical issues, in this case the question of whether the Veteran has a disability for VA purposes falls outside the realm of common knowledge of a lay person and is an issue requiring medical expertise.  In fact, it requires audiometric testing, and a layperson clearly cannot substitute his or her belief as to the level of puretone decibel loss or speech discrimination for test results.  Therefore, while the Veteran's statements are duly considered by the Board, the Veteran is not competent to provide a diagnosis or a medical opinion with respect to the issue of entitlement to service connection for a right ear hearing loss disability.  See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n. 4 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141   (1992); Gilpin v. Brown, 155 F.3d 1353   (Fed. Cir. 1998).   In this case, the Veteran's audiometric results do not meet the minimum criteria to recognize his hearing loss in the right ear as a disability.  In the absence of a current ratable, right ear hearing loss disability pursuant to § 3.385, the Veteran does not meet the threshold element of his service connection and the claim must be denied.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim).  Finally, because the threshold element of a current disability is not met in this case, it is unnecessary to address the remaining elements necessary to establish the service connection claim.

ORDER

Entitlement to service connection for a right ear hearing loss disability is denied.



____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals


   
Department of Veterans Affairs