Citation Nr: 1806759	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-19 681	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for right ear hearing loss. 


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Ford, Associate Counsel



INTRODUCTION

The Veteran served active duty in the United States Marine Corps from November 1965 to October 1967.

This appeal arises before the Board of Veterans' Appeals (Board) from a September 2009 rating decision in which the Department of Veteran Affairs (VA) St. Louis, Missouri, Regional Office (RO) denied entitlement to service connection for bilateral hearing loss.  In May 2016 and June 2017, the Board remanded the appeal for further development.  The Board notes that, during the pendency of the claim, the claims file was transferred to the Chicago, Illinois, RO.

The Veteran was scheduled for a requested videoconference hearing in October 2016.  Prior to the scheduled hearing, the Veteran withdrew his request for the hearing.  Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record.  See 38 C.F.R. § 20.704(e)(2017).

The Board notes that in an October 2017 rating decision, the RO granted service connection for left ear hearing loss.  As that is a full grant of the benefit sought as to that issue, the claim for service connection for left ear hearing loss is no longer before the Board.


FINDING OF FACT

The evidence of record does not establish that the Veteran has a right ear hearing loss disability for VA purposes.






CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

SERVICE CONNECTION

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372.

For 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, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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). 

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Service connection may also be presumed for chronic diseases, enumerated under 38 C.F.R. § 3.309 (a), which are presumptively linked to service based upon continuity of symptomatology.  See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that his right ear hearing loss is due to his period of service.  Specifically, the Veteran asserts that his duties as an aircraft engineer mechanic resulted in his current right ear hearing impairment. 

Turning to the first element of service connection, a current disability must be established.  

In an October 2009 VA audio examination, the audiologist reported that following puretone thresholds (in decibels):


HERTZ

500
1000
2000
3000
4000
RIGHT
0
10
5
5
20

The examiner noted 94 percent word recognition for the right ear. 

In a November 2009 private audio examination, the audiologist reported that following puretone thresholds (in decibels):


HERTZ

500
1000
2000
3000
4000
RIGHT
10
15
5
15
25

As November 2009 speech recognition test does not specify use of the Maryland CNC Test, it is not sufficient for the purposes of adjudicating the claim.

In a July 2017 VA audio examination, the audiologist reported that following puretone thresholds (in decibels):


HERTZ

500
1000
2000
3000
4000
RIGHT
10
15
5
10
25

The examiner noted 96 percent word recognition for the right ear.  The examiner noted sensorineural hearing loss in the high frequency.

After review of the record, the Board finds that the evidence does not establish that the Veteran has impaired hearing of the right ear for VA purposes.  The regulations set a clear standard for hearing impairment for VA purposes.  Although the July 2017 audio examination does show shifts in hearing, there is no evidence of record showing that, at any point, these shifts rose to the level that they show speech recognition of less than 94 percent, an auditory threshold at 40 decibels or more, or at least three auditory thresholds of 26 decibels or more.  

The Board has considered the Veteran's contention that his period of service resulted in his right ear hearing loss.  However, audiometric testing results of record do not establish that the Veteran has a hearing loss disability in his right ear pursuant to 38 C.F.R. § 3.385 (2017).  Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. The competent evidence establishes that the Veteran does not have the disability for which service connection is sought, and there can be no valid claim for service connection for a right ear hearing loss disability as that disability is not shown by the evidence of record. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As such, because a right ear hearing loss disability for VA purposes has not been established at any point during the appeal period, the criteria for service connection has not been met, and the claim is denied.


ORDER

Entitlement to service connection for right ear hearing loss is denied. 



____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs