Citation Nr: 18146914 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 14-09 131A DATE: November 2, 2018 ORDER Entitlement to service connection for a hearing loss disability of the left ear is granted. Entitlement to service connection for a hearing loss disability of the right ear is denied. FINDINGS OF FACT 1. The evidence of record is at the very least in equipoise as to whether the Veteran’s left ear hearing loss disability is related to his military service. 2. At no time during the pendency of the claim has the Veteran had a right ear hearing loss disability for VA purposes upon audiometric testing. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for service connection for a left ear hearing loss disability are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to June 2005. He is the recipient of the Combat Infantryman Badge. In May 2018, the Veteran testified before the Board at a videoconference hearing. A transcript of the hearing has been associated with the Veteran’s claims file. Entitlement to service connection for left and right ear hearing loss disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran is seeking entitlement to service connection for hearing loss disabilities in both ears. The Veteran contends that his hearing loss is due to in-service acoustic trauma, to include the sound of gunfire, explosions, and to loud machinery. The Board observes that the Veteran served as an Infantryman during combat service in Afghanistan. He is the recipient of the Combat Infantryman Badge. Thus, his reports of having been exposed to acoustic trauma during combat service are presumed to be credible. The Veteran has a current left ear hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385. See the September 2018 VA examiner’s report, at 3 (noting a puretone threshold value of 80 decibels at 4000 Hz). The Veteran’s service treatment records show that the Veteran entered service with normal left ear hearing acuity, as defined by VA under 38 C.F.R. § 3.385. While a hearing loss is shown at the 6000 Hz level upon entry, such does not constitute a pre-existing disability for the purposes of this inquiry. Although a July 2011 VA examiner opined against a relationship between the Veteran’s left ear hearing loss and service based on her observation that the Veteran’s hearing acuity between service entrance and separation showed no significant change, a September 2018 VA examiner opined to the contrary. Indeed, the September 2018 VA examiner found that the Veteran’s left ear hearing loss was at least as likely as not related to the Veteran’s active duty service, citing the Veteran’s high probability of sustained acoustic trauma as an infantryman in support of the opinion. Although the examiner did couch the opinion in terms of in-service aggravation, as noted above, the Veteran had no hearing loss disability upon entry into service, by VA regulation. The VA examiner’s underlying conclusion—that the Veteran’s current left ear hearing loss disability is related to in-service combat-related acoustic trauma—remains clear. The Board finds that the evidence both for and against the Veteran’s claim are at the very least in relative equipoise. Thus, the Board will resolve all doubt in the Veteran’s favor and find that the criteria for service connection for a left ear hearing loss disability have been met. With respect to the right ear, the Board observes that audiometric testing results from May 2011 and September 2018 VA examinations show normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Indeed, in May 2011, pure tone thresholds for the right ear, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 0 5 15 Maryland CNC speech recognition testing was 100 percent in the right ear. In September 2018, pure tone thresholds for the right ear, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 5 0 0 20 Maryland CNC speech recognition testing was again 100 percent in the right ear. In comparing the results of the audiological testing to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against a finding that the Veteran currently suffers from a right ear hearing loss disability as defined for VA compensation purposes. Crucially, no other competent medical evidence in the record indicates a right ear hearing loss disability in accordance with 38 C.F.R. § 3.385. Without a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Although the Board in no way calls into question the Veteran’s own observation of diminished hearing acuity of the right ear, the Board is constrained at this time from finding that the Veteran’s right ear hearing loss is of such severity to qualify as a disability for VA purposes, as defined by regulation. For this reason, the service-connection claim for a hearing loss disability of the right ear must be denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel