Citation Nr: 1803732	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-20 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for right ear hearing loss.

2. Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Alhinnawi, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1969 to March 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  


FINDINGS OF FACT

1. Right ear hearing loss for VA purposes has not been diagnosed at any time during the appeal period.

2. The Veteran's diagnosed left ear sensorineural hearing loss had its initial onset in service or is otherwise shown to be etiologically related to service.


CONCLUSIONS OF LAW

1. The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017).

2. The criteria for service connection for left ear hearing loss have been met.  38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The matter was Remanded in July 2017 for the purpose of affording the Veteran a personal hearing before a Veterans Law Judge.  A personal hearing was conducted between the Veteran and undersigned in October 2017.  A transcript is associated with the record.  There was substantial compliance with the July 2017 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008)); Dyment v. West, 13 Vet. App. 141 (1999).

The Veteran's representative argues that the February 2013 VA opinion is inadequate, because it failed to consider a threshold shift in the Veteran's hearing during service.  See October 2017 Hearing Testimony.  The claim for service connection for left ear hearing loss is being granted so the adequacy of the examination is immaterial.  It is also immaterial with respect to the right ear.  As will be explained below, his claim is being denied on the basis that a current hearing loss disability for VA purposes has not been shown.  Discussion of the in-service threshold shifts is thereby irrelevant.  

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Hearing Loss

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. § 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).  Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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.

The Veteran underwent audiometric testing at a February 2013 VA examination.  His Maryland CNC speech recognition scores were 94 percent in the right ear and 90 percent in the left ear.  The puretone thresholds, in decibels, are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
20
15
LEFT
5
10
55
55
55

The record also contains the results of VA audiometric testing conducted in September 2017.  See December 2017 Medical Treatment Record, Government Facility.  However, the results are in graph format without a legend to interpret the graph's symbols, and the testing describes the Veteran's speech recognition scores in general terms without precise percentages.  As such, the Board cannot consider the results.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990).

Right Ear

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In the absence of proof of a present disability, there can be no valid claim for service connection.  See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  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 if the disability resolves prior to the adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).


The Veteran does not have right ear hearing loss for VA purposes.  His representative even conceded that the Veteran did not have such a diagnosis.  See October 2017 Hearing Transcript.  In the absence of evidence of a current disability, the Veteran's claim for right ear hearing loss must be denied.

Left Ear

The February 2013 examination report shows a diagnosis of left ear sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385.  Element (1) of Shedden has been met.

The record does not reflect treatment or diagnosis of hearing loss for VA purposes in service.  The Veteran does not necessarily argue the contrary.  He attributes his current hearing loss to in-service exposure to noise from power tools and large equipment.  See October 2017 Hearing Testimony.  His DD-214 documents his military occupational specialty of warehouse supply specialist.  The Veteran's reports of in-service noise exposure are credible and sufficient to satisfy element (2) of Shedden.

Turning to Shedden element (3), while the record does not reflect treatment or diagnosis of hearing loss for VA purposes in service, the lay evidence supports the Veteran's claim of experiencing hearing loss since service.  The Veteran has stated that he has long had hearing loss which has progressively worsened over time.  He also reported that his spouse of 40 years has noticed a deterioration in his hearing.

Taken together with the circumstances of the Veteran's service and the aforementioned lay statements, the totality of the evidence supports the finding that the onset of the Veteran's current hearing loss disability occurred during service, and that the symptoms of his hearing loss have progressed to this time.  The Veteran is entitled to service connection for his left ear hearing loss.

The Board has considered the February 2013 examiner's opinion that the Veteran's hearing loss was not caused by or a result of an event in service.  However, there is no indication that consideration was given to the Veteran's lay history of hearing loss since service.  The opinion is therefore inadequate and outweighed by the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).



ORDER

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

Entitlement to service connection for left ear hearing loss is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs