Citation Nr: 1750160	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  12-36 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for hearing loss. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

E.  Vample, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to September 1967. 

This case is before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 


FINDING OF FACT

The Veteran has no current diagnosis of hearing loss for VA purposes. 


CONCLUSION OF LAW

The criteria for service connection for hearing loss have not been met.  38 U.S.C.A.  § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

The Veteran is claiming service connection for hearing loss which he contends is due to artillery noise exposure while in service. 

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110.  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

VA must give consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154 (a).  When there is an approximate balance of positive and negative evidence regarding the issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C.A. § 5107 (b).

In cases where a hearing loss disability is claimed, 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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(2016).

Based on the evidence of record, the Veteran's claim for service connection for hearing loss is denied. 

Initially, the Board notes that a threshold requirement in all service connection claims is that there is a current disability.  The Board finds that the record does not show that there is a current disability with regards to his claim.  Specifically, there is no evidence that the Veteran has ever been diagnosed with hearing loss severe enough to be considered a disability for VA purposes. 

At a VA audiology examination in July 2010, the Veteran noted a loss of hearing in his right ear, which he stated began in service. 

On evaluation, his pure tone thresholds, in decibels, were as follows: 


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
20
25
20
15
30
96
LEFT
25
25
25
30
35
96

The examiner concluded that the audiological findings indicate normal hearing in the Veteran's right and left ear.  He further noted that the Veteran's word recognition scores were excellent at 96% bilaterally.  The examiner opined that it is his opinion that the Veteran's complaint of hearing loss is less likely as not related to his military service. 	

At a VA examination in February 2011, the Veteran's pure tone thresholds, in decibels were as follows: 


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
20
20
20
15
25
94
LEFT
25
25
25
30
30
98

The examiner noted that his previous July 2010 opinion that the Veteran's hearing loss is less likely as not related to his military service remained unchanged. 

Based on the foregoing evidence, the Board must deny the Veteran's claim for service connection for hearing loss.  The evidence does not demonstrate the first element required for service connection- a current disability.  See 38 C.F.R. §§ 3.102, 3.303, 3.385 (2016); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement to service-connected disease or injury to cases where such incidents had resulted in a disability); See also McClain v. Nicholson, 21 Vet. App. 319 (2007)  (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim."). 

In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his audiological disorders to active service.  The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of audiological disorders such as hearing loss.  See Jandreau, 492 F.3d at 1377, n.4. Hearing loss does not involve a simple identification that a layperson is competent to make. Instead, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disabilities are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.

The Board notes an October 2017 statement made by the Veteran's representative which stated that the medical examiner did not provide adequate rationale for a negative nexus opinion.  However, the Veteran's claim is being denied for lack of disability, therefore any question regarding nexus is ultimately inapplicable. 

In light of the above discussion, the Board finds that the weight of the competent evidence does not attribute the Veteran's hearing loss to military service despite his contentions to the contrary.  In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107 (b) (West 2014).  However, as the most probative evidence is against the claim, the doctrine is not applicable in this case  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

VA Duty to Notify and Assist

 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(2016). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b) (2016); Quartuccio v. Principi, 16 Vet. App. 183(2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112   (2004).  In this case, the Veteran was provided notice letters informing him of both his and VA's obligations.  Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).  Therefore, additional notice is not required and any defect in notice is not prejudicial. 

With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A (c) (2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c) (3)). 

Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained.  The Veteran has also been provided with VA examinations.  Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The VA examination report is therefore adequate for the purpose of rendering a decision on appeal.  38 C.F.R. § 4.2(2016); Barr v. Nicholson, 21 Vet. App. 303(2007).


ORDER

Service connection for hearing loss is denied



____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs