Citation Nr: 18158536 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-63 771 DATE: December 17, 2018 ORDER Service connection for bilateral hearing loss is denied. VETERAN’S CONTENTIONS The Veteran contends that he has bilateral hearing loss as a result of duties related to his military occupational specialty (MOS) in vehicle operations, including working around C-5s, C-103s, KC-135s, and A-10 War Hogs; and driving tractor trailers, 2 ½ ton trucks, forklifts, wreckers, and humvees with little to no hearing protection. FINDING OF FACT The Veteran does not have bilateral hearing loss for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1996 to November 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. Specifically, the Veteran contends that he has bilateral hearing loss as a result of his duties related to his MOS in vehicle operations; including working around C-5s, C-103s, KC-135s, and A-10 War Hogs, and driving tractor trailers, 2 ½ ton trucks, forklifts, wreckers, and humvees with little to no hearing protection. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017). "Other organic diseases of the nervous system," which may include sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 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, 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. 38 C.F.R. § 3.385 (2017). Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. Here, neither the service treatment records (STRs) nor post-service treatment records contain a diagnosis of bilateral hearing loss per 38 C.F.R. § 3.385. The Veteran was scheduled for a VA audiological examination in October 2016. The examiner opined that it was less likely as not the Veteran’s bilateral hearing loss was caused by, or the result of an event in military service. The examiner reasoned that the Veteran demonstrated normal hearing in both ears upon audiological testing from 250 – 8000 Hz. During the examination, the VA examiner documented Maryland CNC speech discrimination scores of 98 percent in the right ear and 100 percent in the left ear and the following pure tone thresholds, in decibels, were documented: RIGHT EAR 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 15 5 10 15 10 LEFT EAR 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 10 10 10 20 25 These results fail to show that the Veteran has a bilateral hearing loss disability for VA compensation purposes at this time. While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the preponderance of the evidence is against granting service connection for bilateral hearing loss because evidence of a current disability is necessary before service connection may be granted and there is no evidence of a current bilateral hearing loss disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such incidents have resulted in a disability....In the absence of proof of a present disability there can be no valid claim.") see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes.) Thus, the appeal must be denied; there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 49 (1990). The Veteran has not established that he has a current disability, so the Board finds that it need not address the other requirements of service connection (in-service incurrence or aggravation of a disease or injury, or nexus between the claimed in-service disease or injury and the current disability.) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel