Citation Nr: 18144247 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-24 733A DATE: October 24, 2018 ORDER Service connection for hearing loss is denied. FINDINGS OF FACT The evidence does not establish a level of hearing loss sufficient to warrant service connection for a disability under VA law. CONCLUSIONS OF LAW The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 1984 to March 1992, and from December 2002 and February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2018, the Veteran testified at a video conference hearing at Indianapolis, Indiana before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. 1. Hearing loss The Veteran contends he has bilateral hearing loss in connection with his military service. A Veteran seeking compensation under 38 U.S.C. §§ 1110 or 1131 must establish three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). Hearing loss for VA purposes is “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 does not meet any of the qualifications for hearing loss for VA purposes, and therefore does not have a present disability. The Veteran’s initial audiologist’s report in May 1992 shows that the Veteran does not suffer from hearing loss. For the 500, 1000, 2000, 3000, and 4000 level frequencies in the right and then left ear’s respectively, the Veteran had scores of 10, 10, 0, 0, and 5, then 10, 5, 5, -5, and 0. The Veteran’s speech recognition test score was 96 percent in both ears. A September 2010 medical treatment record mentions that while the Veteran was being examined for bilateral knee pain, he denies experiencing hearing loss. A non-governmental medical treatment record from February 2011 diagnoses the Veteran with hearing loss, but it does not reach levels required for VA purposes. Rather, this record reflects the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 35 30 LEFT 30 25 15 25 35 While the examiner diagnosed the Veteran with hearing loss and opines that it is “not improving,” the threshold for VA purposes is not met. Another audiology examination in the Veteran’s file in July 2011 does not offer an opinion on hearing loss because the Veteran did not show for the procedure. A June 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire again shows that the Veteran does not have hearing loss for VA purposes based on puretone thresholds or the speech recognition test. The results on this date were HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 15 15 10 10 15 The Veteran’s speech recognition test score was 100 percent in both ears. The examiner opines that in the right ear, the Veteran’s hearing is within normal limits, and that the hearing loss at 6000 Hz is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. In this same June 2014 examination, the Veteran reported to the examiner that he had surgery on his left ear when it was hit by a hot spark, as well as his experiencing acoustic trauma when in service between 1984-1992 and 2002-2004 due to his exposure to heavy equipment and artillery noise. He further denies any future recreational noise exposure but does report some occupational noise exposure from working construction. After the Veteran’s videoconference hearing, the Board determined that the Veteran should undergo an additional audiometry examination. The Veteran’s most recent June 2018 audiometry examination still shows that the Veteran does not have hearing loss for VA purposes. The results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 10 LEFT 15 15 15 20 15 The Veteran’s speech recognition test score was still 100 percent in both ears. Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. In this case, where the evidence shows no current hearing loss disability under 38 C.F.R. § 3.385 upon which to predicate a grant of service connection at any time during the claim period, there can be no valid claim for that benefit. See Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223, 225. While the Veteran and his wife believe that the Veteran are competent to described decreased hearing, they are not competent to provide a diagnosis in this case as a diagnosis under 38 C.F.R. § 3.385 is determined by the mechanical application of the statutory language in § 3.385 and based on the audiometric test results of the puretone thresholds and Maryland CNC tests. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The issue is medically complex, as it requires specific medical testing to determine if hearing loss is present. Consequently, the Board gives more probative weight to the competent medical evidence. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Accordingly, service connection must be denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Iannone, Law Clerk