Citation Nr: 19119671 Decision Date: 03/19/19 Archive Date: 03/18/19 DOCKET NO. 17-46 425 DATE: March 19, 2019 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran does not have a current hearing loss disability in his right ear. 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 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) in June 1973. This appeal is before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran initially appealed service connection for bilateral hearing loss and tinnitus. VA subsequently granted service connection for left ear hearing loss and tinnitus, and only right ear hearing loss remains on appeal. Service connection may be granted 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(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “veteran” is defined in 38 U.S.C. § 101(2) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 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, 1000, 2000, 3000 and 4000 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. Along with his October 2016 claim, the Veteran submitted a July 2016 private audiological evaluation. He reported problems communicating. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 30 30 30 Speech audiometry was not tested. The physician diagnosed bilateral sensorineural hearing loss. The Veteran underwent a VA examination in May 2017. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 20 20 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. He was diagnosed with bilateral sensorineural hearing loss, though the examiner noted that right ear hearing loss did not meet the criteria to be considered a disability by VA. The examiner opined that hearing loss was at least as likely not related to acoustic trauma in service. The Board finds that the evidence weighs against a finding of a current right ear hearing loss disability. The May 2017 VA examination yielded results in the right ear that did not meet the criteria for a disability under 38 C.F.R. § 3.385. No other audiometric testing was conducted since the Veteran filed his claim, and there is therefore no evidence of a current disability. While the Veteran submitted a private audiological evaluation from July 2016 which met the criteria of 38 C.F.R. § 3.385 three months prior to filing his claim, the Board finds that the VA examination is more probative to whether the Veteran had a current disability during the claim period as opposed to temporary hearing loss which may have improved. Furthermore, the Board notes that the physician who completed the July 2016 examination form failed to calculate the average threshold correctly, adding doubt to whether the instructions were read in full and whether correct testing procedures were followed. The May 2017 VA examination is thus a more reliable indicator of the Veteran’s right ear hearing capability. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel