Citation Nr: 18146643 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-00 375 DATE: October 31, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The appellant does not currently have a hearing loss disability in either ear for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the Army from June 2006 to June 2009. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board remanded this matter in October 2017. A Supplemental Statement of the Case (SSOC) was issued in November 2017. The appellant was afforded a hearing by videoconference before the undersigned in April 2017. A transcript is of record. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including an organic disease of the nervous system, such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Analysis Upon weighing the evidence, the Board finds that service connection for bilateral hearing loss is not warranted because the appellant has not had hearing loss for VA purposes during the period on appeal. Service treatment records indicate that the appellant’s hearing acuity was tested in June 2006. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 LEFT 0 5 0 0 0 Service treatment records indicate a significant threshold shift, observed in June 2007. At such time, pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 15 15 LEFT 25 25 15 10 20 In his June 2009 Report of Medical History, the appellant denied hearing loss. Hearing acuity was tested during his June 2009 separation examination. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 15 15 LEFT 25 25 15 10 20 The post-service record on appeal shows that the appellant was afforded a contracted examination in September 2009. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 20 LEFT 25 20 20 20 20 The 1000-4000 Hertz average was 23.75 decibels in the right ear and 20 in the left. Speech recognition using the Maryland CNC word list was 100 percent in the right ear and 100 percent in the left. The examiner stated that hearing was within normal limits bilaterally. An August 2010 clinical note states that the appellant was a candidate for hearing aid in the left ear only. In December 2010, the appellant was diagnosed with bilateral sensorineural hearing loss and issued hearing aid. The appellant was afforded a contracted examination in October 2017. The claims file was reviewed. Pure tone threshold testing revealed:   HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 15 LEFT 25 25 20 25 25 The 1000-4000 Hertz average was 20 decibels in the right ear and 23.75 in the left. Speech recognition using the Maryland CNC word list was 100 percent in the right ear and 96 percent in the left. The appellant’s hearing was noted to be normal bilaterally. The appellant contends that he developed bilateral hearing loss as a result of noise exposure during active service. The Board recognizes that the appellant’s service treatment records indicate that he sustained a significant threshold shift during service. The Board also recognizes that he has been diagnosed as having bilateral sensorineural hearing loss and has been issued hearing aids. However, the law is clear that in order to obtain service connection, a Veteran must first exhibit hearing loss at a certain level which VA has determined is indicative of a disability. See 38 C.F.R. § 3.385. As described in detail above, the appellant’s service treatment records and the VA examination reports show that his hearing acuity both in service and since that time does not meet the criteria for a hearing loss disability in either ear for VA purposes. 38 C.F.R. § 3.385 dictates that service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The appellant’s speech recognition scores using the Maryland CNC Test were 100 percent bilaterally in September 2009. In October 2017, such were 100 percent in the right ear and 96 percent in the left. No frequency had an auditory threshold of greater than 35 decibels; and the auditory threshold for at least three frequencies was not 26 decibels or greater. His bilateral ears were noted to be normal in September 2009 and October 2017. There is no other post-service clinical evidence establishing a current hearing loss disability for VA purposes. Although the appellant’s VA medical records include a diagnosis of bilateral sensorineural hearing loss in December 2010, he does not meet the criteria under 38 C.F.R. § 3.385 to have hearing loss for VA compensation purposes at this time. Moreover, the record on appeal shows that the appellant has never had a hearing loss disability in either ear for VA purposes. The appellant’s statements to the extent that he has experienced worsening hearing bilaterally have been considered and are considered credible. To that end, following his April 2017 testimony, he was afforded an additional examination in October 2017. Although the appellant is competent to describe symptoms of difficulty hearing, he is not competent to state that his hearing acuity is severe enough to meet the specific criteria set forth in section 3.385. Under these circumstances, entitlement to service connection for bilateral hearing loss must be denied because the most probative evidence shows that the appellant does not currently have a bilateral hearing loss disability for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where in-service incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA’s interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent). In other words, the law limits entitlement to compensation to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). VA has promulgated regulations specifically defining a hearing loss disability. See 38 C.F.R. § 3.385. Although the appellant has contended that his hearing has worsened, the record contains audiometric test results which establish that the decreased hearing acuity he perceives does not meet the criteria set forth in section 3.385, a necessary prerequisite to an award of service connection for bilateral hearing loss. Although the appellant is competent to describe his decreased hearing acuity, he is not competent to state that his hearing acuity meets the required pure tone thresholds, in decibels. Again, absent probative evidence of a current hearing loss disability, the claim must be denied. As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel