Citation Nr: 18151213 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 11-05 349 DATE: November 16, 2018 ORDER Service connection for bilateral hearing loss disability is denied. FINDING OF FACT The Veteran does not have bilateral hearing loss disability. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to June 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A March 2017 memorandum decision of the United States Court of Appeals for Veterans Claims (Court) vacated and remanded an August 2015 Board decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. In August 2017, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ) in compliance with the Court’s instructions that an adequate examination be obtained because the 2010 VA examination relied upon by the Board was inadequate. In August 2018 the AOJ granted service connection for tinnitus and continued to deny the claim for hearing loss disability. The claim of service connection for bilateral hearing loss disability is again before the Board. The Veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2015. The issue was clarified, the concept of service connection was explained and the Veteran was provided additional time to supplement the record with supportive evidence. The actions of the VLJ comply with 38 C.F.R. § 3.103. 1. Service connection for bilateral hearing loss disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. In general, 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. 2009). The Veteran contends that he has current bilateral hearing loss related to conceded acoustic trauma in service. He has not indicated that his bilateral hearing loss has been present since service. Consistent with this, it is uncontroverted that in-service audiograms dated in January 1988, May 1989 and September 1991, as well as an April 1995 VA audiogram, fail to demonstrate hearing loss disability for VA purposes. Rather, he testified very distinctly that he first noted hearing problems in 2009, and first sought treatment at that time. Thus, he does not allege nor does the record suggest continuity of symptomatology. The issue for the Board is whether the Veteran has a current hearing loss disability that began during service or is at least as likely as not related to service. That determination is governed by 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Board concludes that while there is diagnosis of sensorineural hearing loss in the 2017 VA examination, the Veteran does not have a bilateral hearing loss disability 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); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 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). The preponderance of the evidence is against a finding of current disability as defined in 38 C.F.R. § 3.385. Treatment records during the pendency of the claim do not show hearing loss disability for VA purposes.   A September 2017 VA audiological evaluation reflects that the 38 C.F.R. § 3.385 criteria are not met. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 30 30 LEFT 20 20 20 25 30 Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left. The Board has carefully reviewed an audiogram graph dated in November 2009 that has © 2003 Miracle Ear Inc. in very small print at the bottom left corner. This is essentially consistent with the Veteran’s testimony that when he first noticed hearing loss in 2009, he went to VA and was “out-sourced” and went to Miracle Ear. He testified they did not tell him he had hearing loss but instead gave him a print out. In Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court stated that the Board could interpret a clear graphical audiogram. This audiogram does appear to show bilateral decibel loss greater than 25 decibels at 2000 through 4000 Hertz, which would suggest hearing loss that meets 38 C.F.R. § 3.385 criteria. However, there is no evidence that the examination was conducted by a state-licensed audiologist or included a controlled speech discrimination test. In fact, the speech findings chart is left blank. See 38 C.F.R. § 4.85 (a) ("An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test."). Therefore, more weight is being given to the 2017 VA examination as to the issue of whether there is current hearing loss by VA standards. Due to the absence of proof of a present disability, there is no valid claim for service connection. The undersigned had pointed out to the Veteran that there did not appear to be hearing loss disability as set forth at 38 C.F.R. § 3.385, and a careful review of the record reflects that the evidence added since the 2015 hearing simply confirms this fact. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The existence of disability as defined by section 3.385 is not subject to lay observation. It requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent in this case. The preponderance of the evidence is against a finding of current bilateral hearing loss, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The fact that there is sensorineural loss addresses the presence of disease. However, in the absence of disability, there is no legal basis to grant service connection. Sections 1110 and 1131 have the same requirements. There must be disability and such disability must result from disease or injury. As noted by the Federal Circuit: For veterans, basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131--the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the following words: “For disability resulting from personal injury suffered or disease contracted in the line of duty....” 38 U.S.C. §§ 1110, 1131   (1994). Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL