Citation Nr: 18160321 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-03 858 DATE: December 26, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT The Veteran’s bilateral hearing loss does not constitute a disability for VA purposes. CONCLUSIONS OF LAW The Veteran’s bilateral hearing loss was not incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the benefits being sought. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally, does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection for bilateral hearing loss is denied Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2018); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement of a current disability is “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.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a), including sensorineural hearing loss, is presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101 (3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307 (a), 3.309(a) (2018). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent a VA audiology examination in October 2016. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 5 20 LEFT 15 10 15 25 25 The average pure tone threshold was 10 decibels in the right ear, and 19 in the left ear left ear. His word recognition score using the Maryland CNC test was 96 percent in the right ear and 94 percent in the left ear. Regarding the right ear, the October 2016 examiner concluded that, “although there is a hearing loss only at 8000 Hz, the Veteran’s reported history, MOS, and today’s audiometric results are consistent with noise exposure. It is reasonable to assume that the change in the Veteran’s hearing was a result of his military noise exposure.” Regarding the left ear, she concluded that “although there were no significant threshold shifts noted between enlistment and separation audiograms, the Veteran’s MOS carried a high probability for noise exposure and he recalled significant military noise exposure. Hearing loss configuration is consistent with noise-induced damage. It is reasonable to believe that hearing loss onset may be a result of cochlear damage from military noise exposure.” The results of the October 2016 VA audiogram, nevertheless, provide probative evidence against the claim because they show that the Veteran’s level of hearing loss does not meet the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2018). The Board notes that at no time during the appeal period has the Veteran’s bilateral hearing loss met the threshold criteria outlined in 38 C.F.R. § 3.385, nor has his speech recognition scores, using the Maryland CNC Test, been less than 94 percent in either ear. Thus, the Board finds that the Veteran’s bilateral hearing loss does not meet the criteria to qualify as a disability for VA purposes. 38 C.F.R. § 3.385 (2018). Therefore, service connection is not warranted. Hensley, 5 Vet. App. 155 (1993). The Board acknowledges that the Veteran is competent to report observable, i.e., his decreased hearing acuity. Layno v. Brown, 6 Vet. App. 465 (1994). The Board does not doubt his ability to perceive changes in his audiological acuity and finds his reports of hearing loss credible. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Notwithstanding, for a grant of service connection for bilateral hearing loss, there must be objective audiological findings corresponding to the criteria of 38 C.F.R. § 3.385. Here, it is not shown by the evidence of record that the Veteran possesses the medical or audiological training, credentials, or other demonstrated expertise, to provide a competent lay opinion about the specific criteria for an audiological disability for VA purposes were met during the appeal period. Kahana, 24 Vet. App. 428 (2011). Since the existence of a current disability is the cornerstone of a claim for VA disability compensation, the Veteran’s claim for bilateral hearing loss cannot proceed. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of competent evidence that the Veteran currently has bilateral hearing loss to an extent recognized as a disability under the governing regulation, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). (Continued on the next page)   Therefore, based upon the preceding, the Board finds that the preponderance of the evidence is against the claim, and service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel