Citation Nr: 18153337 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-13 627 DATE: November 27, 2018 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The probative evidence of record does not show the Veteran suffers from left ear hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1987 to August 1991. An August 2017 Board decision denied the Veteran’s service connection claim for left ear hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. Specifically, the Joint Motion noted that the Veteran had not been afforded a VA examination and an etiological opinion had not been obtained regarding his bilateral hearing, as directed by a February 2013 Board remand. The parties to the Joint Motion highlighted that the August 2017 Board decision was based on sound reasoning in finding that a nexus opinion would be immaterial because the Veteran was not shown to have a left ear hearing loss disability. However, the parties agreed that the February 2013 remand reasonably raised the Veteran’s expectation that a new VA examination and etiological opinion would be obtained. Notably, in April 2018, the Veteran was afforded a new VA examination to assess his bilateral hearing loss and the VA examiner provided an etiological opinion as to whether his claimed left and right ear hearing loss are related to his military service. As such, the Board finds that there has been substantial compliance with the February 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the August 2017 Board decision also remanded the Veteran’s claims for service connection for right ear hearing loss, back disability, and psychiatric disability, the Veteran’s claim for restoration of the 60 percent rating for hyperparathyroidism, and entitlement to a total disability rating based on individual unemployability. These claims are still awaiting adjudication by the Regional Office following compliance with the Board’s remand directives, and therefore, are not yet under the jurisdiction of the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Left Ear Hearing Loss The Veteran contends that his left ear hearing loss is related to his active duty service, to include his positive in aircraft maintenance. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Pursuant to 38 C.F.R. § 3.385 (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. Here, the medical evidence does not reflect the Veteran has a hearing loss disability in his left ear for VA purposes. In July 2010, the Veteran received a VA examination. On this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT EAR 25 15 20 15 25 In addition, speech audiometry revealed speech recognition ability of 98 percent in the left ear. As noted above, the In April 2018, the Veteran received another VA examination. The Veteran’s audiological pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT EAR 15 15 20 20 30 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. The examiner opined that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000hz. The examiner also opined that the Veteran’s left ear hearing loss was less likely than not related to his military service. There is no other competent medical evaluation in accord with the requirements of 38 C.F.R. § 3.385(a) that is otherwise of record which reflects the Veteran has a hearing loss disability of the left ear as defined by 38 C.F.R. § 3.385. Due to the results of both examinations, the Veteran does not have a current left ear hearing disability for VA purposes. Additionally, the Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had a hearing loss disability of the left ear as defined by 38 C.F.R. § 3.385 at any time during the pendency of this case. Therefore, because the Veteran does not currently have a left ear hearing disability for VA purposes, service connection must be denied. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel