Citation Nr: 1820004 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-31 215A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2005 to September 2011. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in response to the April 2012 rating decision, the Veteran filed an August 2012 notice of disagreement (NOD) with the assigned ratings for right wrist condition, little finger condition, and right thigh condition as well as the denial of service connection for bilateral hearing loss. Thereafter, a Statement of the Case (SOC) was issued in August 2014. However, the Veteran limited his substantive appeal to the issue of entitlement to service connection for bilateral hearing loss. See September 2014 VA Form 9. As such, entitlement to service connection for bilateral hearing loss is the only matter before the Board as reflected on the title page. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran filed a June 2011 pre-discharge compensation claim for service connection for bilateral hearing loss. The Veteran contends that he was exposed to acoustic trauma in service and that he should be service-connected for hearing loss even if his hearing test results are normal. See September 2014 VA Form 9. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has bilateral hearing loss that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. An essential element of a claim for service connection is evidence of a current disability. 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 Veteran was afforded a July 2011 VA audiological examination and his puretone audiometry results were: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 15 25 25 Left 15 20 20 20 25 The average puretone threshold on the right was 20 and on the left was 21.25 with speech discrimination scores of 96 percent in each ear. The examiner indicated that the Veteran does not have bilateral hearing loss in accordance with VA standards and explained that there is no pathology to render a hearing loss diagnosis. Based on the foregoing, the Veteran does not have a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, including hearing background noises and experiencing difficulty hearing. See July 2011 VA audiological examination report. To this extent, the Board finds that the Veteran is competent to report that he has current hearing difficulty; however, he has not been shown to be competent to provide a diagnosis of a hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges the Veteran's treatment records, including April 2009, June 2009, August 2009, and January 2010 audiograms during his period of service which showed threshold shift in hearing; however these audiogram results failed to demonstrate a hearing loss disability for VA purposes. In order for the Veteran's hearing impairment to be considered a disability for VA purposes it must meet the criteria provided under current regulations. While the Board sympathizes with the Veteran's current hearing impairment; it is unable to provide service connection as the Veteran's auditory threshold is not 40 decibels or greater in any of the listed frequencies, at least 26 decibels or greater in at least three of the listed frequencies, nor does he have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385. As explained above, the Veteran must have a disability at the time of the claim. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has bilateral hearing disability for VA purposes. Thus, service connection is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs