Citation Nr: 1803833	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  12-12 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

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

2. Entitlement to service connection for a left ankle disability. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel



INTRODUCTION

The Veteran served on active duty from July 1980 to April 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

In a July 2017 written statement, the Veteran withdrew a request to appear at a hearing before the Board, and stated that he no longer wished to pursue the appeal.  However, his representative submitted a December 2017 informal hearing presentation in support of the claims.  Accordingly, although the Veteran's hearing request is considered withdrawn, the Board finds that the issues remain in appellate status. 


FINDINGS OF FACT

1.  The Veteran does not have a current left ear hearing loss disability.

2.  The Veteran does not have a current disability of the left ankle. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for left ear hearing loss are not satisfied.  38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2.  The criteria for service connection for a disability of the left ankle are not satisfied.  38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 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).  

To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999).  

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. 


I. Left Ear Hearing Loss

The preponderance of the evidence shows that the Veteran does not have a current hearing loss disability in the left ear, for the reasons that follow. 

Impaired hearing qualifies as a disability for VA compensation purposes when the puretone auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the puretone 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 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, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected.  Hensley, 5 Vet. App. at 159.

Here, a September 2010 private audiogram, the June 2012 VA examination report, and the July 2016 VA examination report, show that the Veteran's puretone thresholds and speech discrimination scores do not meet the criteria for a current disability as defined by VA regulation.  See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 159.  Consequently, the criteria for service connection are not satisfied.  See id.; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of present disability there can be no valid claim") (internal citation omitted).  

In sum, service connection for left ear hearing loss must be denied.  Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. 5107; 38 C.F.R. § 3.102. 


II. Left Ankle Disability

The preponderance of the evidence shows that the Veteran does not have a current disability of the left ankle.  In the June 2012 VA examination report, the examiner concluded based on examination findings that the Veteran had no current pathology or functional limitations of the ankle.  The examiner considered the Veteran's in-service ankle injury, but noted that it is very common to have complete healing from such injuries.  The Veteran does not state that he has been treated for or diagnosed with left ankle pathology during the pendency of this claim, or that he has had left ankle problems during the pendency of this claim.  

In the absence of a current disability of the left ankle, the criteria for service connection are not satisfied.  See Holton, 557 F.3d at 1366; Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225. 

In sum, service connection for a left ankle disability must be denied.  Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply.  See 38 U.S.C. 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for left ear hearing loss is denied.  

Service connection for a left ankle disability is denied. 



____________________________________________
P. M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs