Citation Nr: 20004286 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 14-36 148 DATE: January 17, 2020 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran does not have current left ear hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to August 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this case to the RO for additional development. Pursuant to the Board’s 2018 remand, the Veteran was afforded a VA examination in March 2019 with addendum opinions. Thus, the RO substantially complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence, or with the conduct of his Board hearing. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner 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). Thus, the Board need not discuss any potential issues in this regard. By way of history, the Veteran was granted service connection for his right ear hearing loss in an August 2019 rating decision; but the August 2019 SSOC continued to deny hearing loss in his left ear. The Veteran continues to argue that he is entitled to service connection for his left ear hearing loss. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, certain chronic diseases, such as organic diseases of the nervous system, to include sensorineural hearing loss, may be presumed to have been incurred during service if they manifest to a compensable degree within one year of separation from active duty. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr, 21 Vet. App. at 307; see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a), such as organic diseases of the nervous system, to include sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 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. Service connection can be granted for a hearing loss disability when the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for hearing loss that first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 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 to the claimant. Here, as per remand directives, the Veteran was afforded a new VA examination in March 2019. The examination showed left ear decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) was 25, at 1000 Hz was 30, at 2000 Hz was 20, at 3000 Hz was, and at 4000 Hz was 20; with the average decibel loss at 23. The Veteran’s speech recognition score was 94 percent in his left ear. The examiner found sensorineural hearing loss in the frequency range of 500 to 4000 Hz in the left ear, and opined that it was at least as likely as not that the Veteran’s bilateral hearing loss was directly connected to his military service. The examiner explained that the Veteran’s hearing tests done at start of military service and end of military service evidenced a significant deterioration in hearing in both ears. However, after a full review of the record, the Board finds that the claim for left ear hearing loss must be denied. The Board finds the evidence of record shows the Veteran does not have a left ear hearing loss disability for VA purposes, despite the 2019 VA examiner’s positive nexus opinion. See 38 C.F.R. § 3.385. Moreover, although the 2019 VA examiner checked the box diagnosing left ear sensorineural hearing loss, the examination report noted that the Veteran may have had left ear hearing loss at a level that was not considered to be a disability for VA purposes; that is exactly the case here. The Board recognizes the Veteran’s contention that he has hearing loss in both ears due to noise exposure from service. It is not doubted that he had noise exposure in service. However, he is not competent to opine as to the specific audiometric values for his hearing or speech recognition. Accordingly, his assertion that he has a left ear hearing loss disability for VA purposes is not competent evidence. VA’s General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). As the Veteran has not asserted, and the evidence does not otherwise show, that his hearing has materially worsened since the March 2019 VA examination, a new examination is unnecessary in this case. See 38 C.F.R. §§ 3.326, 3.327 (new examinations will be requested whenever VA determines that there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400 (1997). While the presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative, McClain v. Nicholson, 21 Vet. App. 319 (2007), Congress has specifically limited entitlement to service-connection for disease or injury to cases when such incidents have resulted in a disability. See 38 U.S.C. § 1110. As discussed above, VA has a very specific definition of what constitutes a hearing loss disability, and those criteria have not been met here. In summary, the evidence shows that the Veteran does not have a left ear hearing loss disability for VA purposes. As the evidence does not support a finding of a current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim for service connection for left ear hearing loss, the benefit-of-the-doubt standard does not apply, and the claim is denied. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.