Citation Nr: 1808825 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-25 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Air Force from May 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. On the December 2014 VA Form 9, the Veteran requested a videoconference Board hearing; however, in October 2015, the Veteran withdrew the hearing request and asked to proceed with the appeal without a hearing. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during service. 2. The Veteran does not have a hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). 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. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The U.S. Court of Appeals for Veterans Claims (Court or CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the June 2014 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In April 2012, the RO provided a VA examination in connection with the appeal. The VA examination report includes all relevant findings needed to evaluate fairly the appeal. The VA examiner considered an accurate history of the claimed disability as provided through interview of the Veteran and review of the record and performed a thorough audiology examination; therefore, the VA examiner had adequate facts and data regarding the history and condition of the claimed hearing loss disability when providing the examination and medical opinion. For these reasons, the Board finds that the VA examination report is adequate, and there is no need for further VA examination or medical opinion. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The evidence shows the Veteran's left ear hearing loss does meet the criteria for a hearing loss disability as defined by VA regulation (38 C.F.R. § 3.385); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between the current hearing loss and a disability or injury suffered during military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Service Connection Analysis for Left Ear Hearing Loss The Veteran contends that he has a left ear hearing loss disability due to acoustic trauma sustained during active service. He asserts that exposure to loud noise while serving as an aircraft mechanic in the Air Force caused current hearing loss. He seeks service connection on this basis. After review of the lay and medical evidence of record, the Board finds that the Veteran sustained acoustic trauma (i.e., sustained a left ear injury) during active service. Because exposure to loud noise is consistent with the conditions and duties of an aircraft mechanic, and the Veteran served as an aircraft maintenance technician during service, the account of frequent exposure to loud noise (i.e., acoustic trauma) during service is deemed credible and of significant probative value. The weight of the evidence shows that the Veteran does not have a current left ear hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385. At the April 2012 VA audiology examination, left ear hearing was within normal limits. The speech discrimination score for the left ear was 100 percent. There is no indication in the record that the April 2012 VA audiometric results for the left ear were inaccurate, and the treatment records relevant to the claim/appeal period similarly show normal hearing for the left ear. See, e.g., August 2013 VA audiology consultation note (noting that left ear hearing acuity was within normal limits across test frequencies with word recognition scores of 96 percent for the left ear). Although the Veteran has asserted that he has a current left ear hearing loss disability caused by noise exposure during service, he does not have the requisite specialized expertise in audiology to either measure or diagnose a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385, which is diagnosed based on objective audiometric testing and controlled speech recognition testing. A hearing loss disability is diagnosed primarily on objective clinical findings, including speech recognition, and audiometric testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that he experienced at any time, he is not competent to diagnose a hearing loss disability because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing that the Veteran is neither trained to administer nor is capable of administering to oneself, even if trained. The Veteran has not alleged, and the evidence does not otherwise indicate, that there has been a material change in the severity of claimed left ear hearing loss since the April 2012 VA audiology examination. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Because a hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, service connection is not warranted for left ear hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for left ear hearing loss is denied. REMAND Service Connection for Right Ear Hearing Loss The issue of service connection for right ear hearing loss is remanded for another VA audiology examination and updated VA treatment records. At an August 2013 VA audiology consultation, right ear hearing was noted to be within normal limits across test frequencies; however, the treating VA examiner also recorded a word recognition score of 92 percent for the right ear, and impaired hearing is considered a disability, in pertinent part, when speech recognition scores using the Maryland CNC Test are less than 94 percent. Because the August 2013 VA audiology consultation note suggests that the right ear hearing may have worsened since the April 2012 VA examination when the speech recognition score was recorded as 100 percent for the right ear, and it is unclear whether the August 2013 treating VA audiologist was using the Maryland CNC test when recording the word recognition score for the right ear at the August 2013 VA audiology consultation so that a hearing loss disability as defined by VA regulation may now be shown, a remand for another VA examination with a medical opinion and updated VA treatment records is warranted. Accordingly, the case is REMANDED for the following actions: 1. Schedule an appropriate VA examination for the claimed right ear hearing loss disability. All relevant documents should be made available to and reviewed by the examiner. The examiner should confirm that the record was reviewed. Based on review of the appropriate records, the examiner should provide the following opinion: Is it as likely as not (i.e., to at least a 50-50 degree of probability) that right ear hearing loss had its onset during service or is otherwise causally or etiologically related to service, to include whether any acoustic trauma was sustained therein due to loud noise exposure? For the purposes of providing the medical opinion, the examiner should assume that the Veteran was routinely exposed to loud noise while serving as an aircraft mechanic during service. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based should be set forth in the report. 2. Obtain any records pertaining to the Veteran's treatment from July 2014 to the present at the Huntington VA Medical Center in Huntington, West Virginia, and associate them with the record. Any and all negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 3. Thereafter, readjudicate the remanded issue. If any benefits sought on appeal remain denied, provide the Veteran and the representative with a supplemental statement of the case. Thereafter, return the case to the Board for further appellate consideration, if in order. 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 appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs