Citation Nr: 18147630 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-00 492 DATE: November 5, 2018 ORDER The Veteran’s request to reopen his claim of entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied in an unappealed December 2010 rating decision. 2. The evidence received since the December 2010 rating decision does not relate to a previously unestablished fact and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The December 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2018). 2. The criteria for reopening the claim of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to March 2007, and was remobilized from inactive reserves from February 2009 to March 2009. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from the May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran, through his agent, has waived his right to a hearing. New and Material Evidence Factual Background In December 2010, the Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied. The Veteran was provided notice of the decision and of his appellate rights, but he did not appeal. The decision is final. In January 2015, the Veteran requested to reopen his claim. In support of the Veteran’s January 2015 request to reopen his claim, the Veteran’s agent requested VA to review his request liberally and account for anything, even if not expressly claimed, reasonably raised by the record. The Board notes that, apart from the agent’s statement, the Veteran did not submit any additional information in support of his request to reopen his claim. The RO granted the Veteran’s request to reopen his claim, provided a VA medical examination to include new audiology tests, and then denied the claim on its merits. The evidence previously of record included the Veteran’s military service records and service treatment records; audiometric data from May 2004, June 2005, March 2006, January 2007, February 2009, and July 2010; and a VA medical examination report from July 2010. The Veteran’s audiometry test results were as follows: May 2004 HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 -5 0 LEFT 5 5 0 5 -5 June 2005 HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 15 5 5 LEFT 5 0 5 0 0 March 2006 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 5 LEFT 5 0 10 5 10 January 2007 HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 20 25 LEFT 20 10 20 20 15 February 2009 HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 15 5 5 LEFT 0 0 5 5 5 July 2010 HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 5 10 LEFT 5 5 5 5 5 In July 2010, the Maryland CNC Test scores in each ear were 98 percent. None of the prior examination results demonstrated hearing loss for VA purposes, or suggested that any hearing impairment was related to service. Evidence added to the record includes the report of an October 2015 VA examination. The examiner reviewed Veteran’s claims file and his medical history, interviewed and examined the Veteran, and administered the puretone audiometry and the Maryland CNC tests. Audiometric testing disclosed the following findings: October 2015 HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 10 5 5 LEFT 10 10 10 15 10 Maryland CNC speech recognition score in the right ear is 96 percent and in the left ear was 94 percent. The examiner opined that the Veteran may have impaired hearing, but it does not meet the criteria to be considered a disability for VA purposes. The examiner also opined that the Veteran’s may have a significant change in hearing threshold in service, which may indicate noise exposure or acoustic trauma. Based on this comprehensive information, the examiner concluded that the Veteran may have hearing loss but not at a level that is considered to be a disability for VA purpose. Legal Principles As a preliminary matter, the Board notes that the normal hearing range falls between 0 and 20 decibels, and the higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For VA purposes, however, some degree of hearing loss does not constitute a disability unless the Veteran’s auditory acuity, as indicated by either a puretone audiometry test or the speech recognition scores using the Maryland CNC Test, meets specific regulatory criteria set forth in 38 C.F.R. § 3.385. To meet theses regulatory criteria, the evidence must show one of the following: (1) a pure tone auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 are 26 decibels or greater; or (3) speech recognition scores on the Maryland CNC Test are less than 94 percent. Id. Notably, before service connection may be granted, reaching or surpassing at least one of these three regulatory thresholds is necessary to constitute a “disability due to hearing impairment,” which is discrete from having some degree of hearing loss, as recognized in Hensley, supra. The purpose of 38 C.F.R. § 3.385 is to establish the precise threshold levels at which hearing loss becomes disabling. Hensley, 5 Vet. App. at 158. Unless the regulatory criteria are met, the Veteran’s impaired hearing will not constitute a disability for VA purposes. See § 3.385. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (emphasis added in the original). Absent proof of a present disability, there can be no valid service-connection claim. Id. The evidence previously considered showed that the Veteran did not have hearing loss for VA purposes. The evidence added to the record since the December 2010 rating decision also shows that the Veteran does not have hearing loss for VA purposes. Although the October 2015 examiner suggested that the Veteran may have a hearing impairment, to constitute hearing loss for VA purposes certain audiometric findings are required; the examiner acknowledged this, eventually. In short, the evidence received since the December 2010 rating action is against the claim. Accordingly, the Board finds that new and material evidence to reopen the claim of service connection for bilateral hearing loss has not been reopened, and the appeal is denied. In denying the Veteran’s request to reopen his claim, the Board acknowledges that the Veteran, through his agent, alleges that the VA examination was inadequate, relying on arguments that are aimed at how to rate bilateral hearing loss. Given that the matter at hand concerns the underlying issue of service connection (with the threshold matter of new and material evidence) the Board finds his arguments meritless. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alex Bardin, Associate Counsel