Citation Nr: 19106918 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-30 734 DATE: January 29, 2019 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran has not been diagnosed with hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), that in pertinent part, denied the claim for service connection for bilateral hearing loss. The Board notes that the Veteran also filed a timely notice of disagreement with the denial of claims for service connection for a right knee disorder, bilateral plantar fasciitis, left shoulder condition, and residuals of concussions. During the pendency of the appeal, an April 2017 rating decision granted service connection for a right knee disorder, bilateral plantar fasciitis, and residuals of traumatic brain injury. Since the Veteran has not disagreed with the ratings or effective dates assigned, these issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Concerning the claim for service connection for a left shoulder condition, the Veteran did not submit a Substantive Appeal to perfect the appeal; hence, that issue is not before the Board and will not be discussed in the decision below. See 38 C.F.R. §§ 19.32, 20.200, 20.302. A claim for service connection for tinnitus has been raised by the record in a June 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action (if needed). 38 C.F.R. § 19.9 (b). Entitlement to service connection for bilateral hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. 3.303 (b). To be “shown in service,” the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. 3.303 (b). There is no “nexus” requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. “[W]hen 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.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran contends that he developed bilateral hearing loss due to acoustic trauma. His DD-214 shows the Veteran’s military occupational specialty was infantryman and noise exposure has been conceded. Service treatment records do not indicate any complaints or diagnosis of hearing loss during service, and hearing test results during service, including in May 1998, March 2000, and August 2001, were within normal limits for VA purposes. Post-service treatment records likewise do no show complaints or diagnosis of hearing impairment. The Veteran underwent a VA audio examination in January 2016. The examiner reported no diagnosis could be provided due to inconsistencies in responses, despite repeated attempts to ascertain the Veteran’s hearing acuity. The examiner explained the pure tone average (PTA) results were too inconsistent for rating purposes and a poor speech reception threshold (SRT)/ PTA agreement with poor test/retest reliability. There were large air /bone gaps but normal tymps and reflexes. The examiner determined that the test results were not indicative of organic hearing loss. While the Veteran is competent to report difficulty hearing, he is not competent to assess whether he has disabling hearing loss for VA purposes. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). As there is no current diagnosis of hearing loss contained within the record, service connection is not warranted. 38 U.S.C. § 5107 (b); See Gilbert, 1 Vet. App. at 54. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Azizi-Barcelo, CounselDepartment of Veterans Affairs