Citation Nr: 1805933	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  12-08 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Services


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1984 to February 1995 and from July 2004 to July 2009, with additional service in the Army National Guard. 

This matter before the Board of Veterans' Appeals (Board) is on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)).

It should be noted that the Veteran initially filed a claim for service connection for bilateral hearing loss in November 1997, which was ultimately denied by a November 1998 rating decision and subsequently became finalized. When the Veteran filed the instant case in September 2009, he filed for service connection for left ear hearing loss. The case came before the Board for the first time in January 2014, and the Board found that reconsideration was warranted based upon the receipt of relevant service records which had not been considered in the prior final decision. See 38 C.F.R. § 3.156(c). The Board additionally notes that the AOJ substantially complied with the remand instructions provided in the prior Board decision. Stegall v. West, 11 Vet. App. 268 (1998).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The competent evidence does not show that the Veteran has hearing loss for VA purposes. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). Thus, an analysis of VCAA compliance is not necessary at this time.

II. Criteria

Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).

For VA compensation purposes, "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 laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

The Veteran is competent to describe his difficulty hearing over the years, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997), Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

III. Analysis

The Veteran contends that he began experiencing bilateral hearing loss while in service in 1985. See August 1998 VA Examination. He reported during his August 1998 VA Examination that his hearing loss began gradually, but denied all other ear-related symptoms. Id. He stated that he had military noise exposure while in service due to his military occupational specialty as an ammunition sergeant, and only used hearing protective devices occasionally. Id. He contends that his hearing loss requires him to turn up the volume on his television in order to hear words clearly, and that others sometimes tell him he speaks too loudly. See December 2016 C&P Examination. 

In November 1983, just prior to the Veteran entering service, an audiology examination was conducted that suggested he had hearing loss in his left ear. Testing on his left ear revealed 25 decibels at 500 Hertz, 55 decibels at 1000 Hertz, 65 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, 30 decibels at 4000 Hertz. His right ear revealed normal hearing levels: 10 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, 5 decibels at 3000 Hertz, and 15 decibels at 4000 Hertz.

However, the results for his left ear have not been duplicated since that time, and subsequent testing has consistently shown hearing within normal limits for VA compensation purposes. An August 1998 VA examination showed the following: 25 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 15 decibels at 3000 Hertz, and 20 decibels at 4000 Hertz for his right ear, and 30 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 30 decibels at 4000 Hertz for his left ear. See August 1998 VA Examination. Additionally, he scored a 96% for his right ear and a 98% for his left ear on the Maryland CNC word list during the same VA examination. Id. Further audiology testing was done on several occasions between the November 1983 and August 1998 tests, including April 1992, July 1993, and December 1994; each test showed hearing within normal limits for VA compensation purposes for both ears.

The Veteran was provided with an additional examination in December 2016. That test revealed the following results: 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, 15 decibels at 3000 Hertz, and 10 decibels at 4000 Hertz for his right ear, and 25 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 25 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz for his left ear. See December 2016 C&P Examination. Furthermore, he scored a 96% in each ear for the Maryland CNC word list on the same examination. Id. 

Based on the foregoing, the Board finds that service connection for hearing loss is not warranted in this case. While the December 2016 VA examiner did opine that the hearing loss in the Veteran's left ear was likely related to military service, the hearing loss evidenced in the VA examination report does not rise to a level that is recognized as disabling for purposes of service connection. Furthermore, as noted above, in the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Veteran's claim for entitlement to service connection for hearing loss must be denied. 

The preponderance of the evidence is against the claims. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. §5107(b), 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 61 (1991). 


ORDER

Entitlement to service connection for hearing loss is denied. 




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals 

Department of Veterans Affairs