Citation Nr: 0808406	
Decision Date: 03/12/08    Archive Date: 03/20/08

DOCKET NO.  98-19 415A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to service connection for bilateral sensorineural 
hearing loss.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans 
Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The veteran was a member of the Army National Guard of 
Alabama from February 1955 to January 1997.  The claims file 
also shows that the veteran had a period of active duty from 
March 1992 to September 1992.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a rating decision from the Department of 
Veterans Affairs (VA) Montgomery, Alabama Regional Office 
(RO).

A video conference hearing was held before the undersigned 
Veterans Law Judge at the RO in May 2000. 

The above issue was remanded in December 2000 and in October 
2003 for further development.  The case has been returned to 
the Board for review.


FINDING OF FACT

No competent evidence has been received to show that the 
veteran's hearing loss may be associated with an event, 
injury, or disease in service.  It is not shown by competent 
evidence to be associated with any active duty for training.  
It pre-existed his period of active duty and is not shown to 
have been made permanently worse therein.


CONCLUSION OF LAW

The veteran's bilateral ear hearing loss was not incurred in 
or aggravated by active duty for training and pre-existed his 
active duty and was not aggravated therein.  38 U.S.C.A. 
§§ 101, 106, 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 
(2007).



REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran asserts that his military training led to the 
development of bilateral ear hearing loss.  He asserts that 
his hearing was initially damaged during arms training at 
Maxwell Air Force Base in 1955 where he did not wear ear 
protection.  Additionally, he also reports that he was 
released from military radio school in beanjesse@example.org. Jackson, 
South Carolina, because of a failed hearing test.   

Review of the record reveals that all appropriate notice and 
development has been accomplished.  See 38 U.S.C.A. §§ 5100 
et seq. (West 2002 & Supp. 2007).  

Examination has been conducted, notice as to what evidence 
needed has been provided, and there is no indication that 
there is additional evidence or development that should be 
undertaken.  The RO attempted to verify the veteran's periods 
of active duty for training (ACDUTRA) and inactive duty for 
training (INACDUTRA), as well as, obtain all service 
department and personnel records through the National 
Personnel Records Center (NPRC).  

Further, the veteran was notified of the type of evidence 
necessary to establish a disability rating and effective date 
for that disability.  Letters of June 2003, July 2003, and 
April 2004 provided pertinent notice and development 
information.  Although the notices were not sent until after 
the initial rating denying the claim, the Board finds that 
any defect with respect to the timing of the required notice 
was harmless error.  Subsequent adjudication cures any 
defect.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). 

Legal criteria for service connection for bilateral ear 
hearing loss 

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
duty or ACDUTRA and, or for disability resulting from injury 
incurred during a period of INACDUTRA.  38 U.S.C.A. 
§§ 101(24), 106, 1110, 1131.  

Notwithstanding the above, service connection may be granted 
for disability shown after service, when all of the evidence, 
including that pertinent to service, shows that it was 
incurred in service, or if pre-existed service was aggravated 
therein.  38 C.F.R. 3.303(d); Cosman v. Principi, 3 Vet. App. 
303, 305 (1992).

In order to establish service connection for the claimed 
disability, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).  The determination as to whether these requirements 
are met is based on an analysis of all the evidence of record 
and the evaluation of its credibility and probative value.  
Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The Board notes that the threshold for normal hearing is from 
0 to 20 decibels; higher threshold levels indicate some 
degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 
(1993). 

For VA purposes, impaired hearing will be considered a 
disability when the auditory threshold in any of the 
frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 
decibels or greater; or 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.  The United 
States Court of Appeals for Veterans Claims (Court) has held 
that the provisions of 38 C.F.R. § 3.385 do not have to be 
met during service.  See Hensley v. Brown, 5 Vet. App. 155 
(1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 
(1992).

A review of the claims file show that service medical records 
from the veteran's initial period of duty with the Alabama 
National Guard from February 1955 to October 1997, as well 
as, his period of active service with the Army National Guard 
from March to September 1992 are not available.  Where 
service medical records are presumed destroyed or are 
otherwise unavailable through no fault of the claimant, the 
Board has a heightened obligation to explain its findings and 
conclusions and to consider carefully the benefit-of-the-
doubt doctrine.  38 U.S.C.A. § 5107(b); O'Hare v. Derwinski, 
1 Vet. App. 365, 367 (1991).  Service medical records for 
some of the early training are unavailable, possibly having 
been burned in the accidental fire at the National Personnel 
Records Center.

Analysis 

As noted, the veteran must demonstrate three elements to 
establish service connection.  There is medical evidence that 
the veteran currently has bilateral hearing loss as defined 
by VA.  On VA audiometric examination in August 1998, 
auditory thresholds for at least three of the frequencies 
500, 1000, 2000, 3000, or 4000 Hertz in the each ear were 26 
decibels or greater.  See 38 C.F.R. § 3.385.  The first 
Hickson element has clearly been satisfied.

In regard to the second element of Hickson, evidence of in-
service incurrence or aggravation, Alabama National Guard 
quadrennial examination conducted in November 1973 shows that 
the whispered voice was 15/15 in both ears.  On audiometric 
examination at the December 1978 National Guard quadrennial 
examination the puretone thresholds at the frequencies of 
1000, 2000, 3000, and 4000 hertz were all rated at 20 in the 
right ear, and 15 in the left ear.  As noted, these hearings 
do not reveal defective hearing.  Both examinations are 
signed by a physician.

Hearing loss was first shown on the August 1982 National 
Guard periodic examination.  At that time audiometric 
examination show that the puretone thresholds at the 
frequencies of 1000, 2000, 3000, and 4000 hertz were 30, 30, 
30, and 45, in the right ear, respectively, and 35, 25, 25, 
and 45, respectively, in the left ear.  Audiometric testing 
throughout the remainder of veteran's period of National 
Guard service indicates impaired hearing.  It is not 
established that any of these examinations were conducted 
during a period of active duty for training.

Initially the Board notes that there is no evidence of a 
hearing loss disability until the August 1982 National Guard 
periodic examination; therefore, the possibility of service 
connection exists only for the verified periods of ACDUTRA, 
INACDUTRA or active service subsequent to August 1982.

The personnel records show that the veteran was in ACDUTRA 
during August 1982.  Because hearing loss is a disease, 
service connection may only be granted if it was incurred in 
or aggravated while performing ACDUTRA or during active 
service.  

While shown on a routine examination in August 1982 
audiometric finding is not dispositive in establishing that 
hearing loss was incurred during active training.  Here, the 
record contains no medical evidence showing that the hearing 
loss demonstrated upon audiometric testing in August 1982 was 
incurred during a period of ADCUTRA.  The record does not 
include any competent medical evidence linking his current 
hearing loss to training.  

Although the veteran contends that he sustained an acoustic 
related injury in 1955, there is no objective evidence of 
injury or treatment during this time period.  The RO has 
requested records from medical facilities at Maxwell Air 
Force Base as well as, Ft. Jackson, South Carolina; however, 
there is no evidence that the veteran received medical care 
for a hearing loss disability.  Furthermore, even if he did 
receive treatment in 1955 or 1956, any hearing loss was acute 
and transitory, as medical records dated as late as 1978 
(more than 20 years after his claimed injury) show that his 
hearing was within normal limits.  While the veteran contends 
the 1973 and 1978 examination reports were falsified, he has 
not provided any evidence to support his theory.  The Board 
finds that the examination reports prepared by competent 
medical professionals, skilled in the evaluation of 
disabilities, are more probative than the veteran's 
statements.

The veteran submitted a statement from a fellow member of the 
National Guard.  Also, his spouse testified at the 
videoconference in 2000.  In essence, they reported that the 
veteran has had a hearing problem since they have known him, 
which dates back to his time served in the military.  We do 
not doubt these statements in support of his claim.  Lay 
statements and testimony are considered to be competent 
evidence when describing the symptoms of a disease or 
disability.  However, when the determinative issue involves a 
question of medical causation, only individuals possessing 
specialized training and knowledge are competent to render an 
opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  The 
record does not establish either party's expertise in medical 
matters.  Therefore, their statements have limited probative 
value.  

In summary, the Board finds that an excessive degree of 
speculation is required to conclude that the veteran's 
hearing loss disorder is related to military service or 
ACDUTRA.  It is clear that the hearing loss pre-existed his 
period of active duty and there is no indication that there 
is any aggravation of the disorder during service.  There is 
no opinion on file that any event in service or training 
caused hearing loss.  The Board concludes that the 
preponderance of the evidence is against the veteran's claim 
for service connection.  


ORDER

Service connection for bilateral sensorineural hearing loss 
is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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