Citation Nr: 20028069 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-30 361 DATE: April 22, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for left hand paresthesia (left hand disability) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of bilateral hearing loss for VA compensation purposes. 2. The preponderance of the evidence of record is against finding that the Veteran has a current left hand parasthesia disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. 2. The criteria for service connection for a left hand parasthesia disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Marines Corps from August 2006 to August 2010. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 and a December 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). This matter stems from two separate appeal streams. The first appeal stream included the issue of service connection for a bilateral hearing loss disability and was perfected in an August 2014 VA Form 9. The second appeal stream included the issue of entitlement to service connection for left hand paresthesias. This claim was also perfected in the August 2014 VA Form 9 submission. The two appeals were merged into one appeal stream on January 12, 2016 and both issues on appeal are addressed below. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law judge in December 2015. A transcript of the hearing is of record. In March 2013, the Board remanded the issues on appeal for further development. As part of the Board’s remand directives, the AOJ was instructed to schedule the Veteran for VA examinations. The case has been returned to the Board for appellate review Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran seeks service connection for a bilateral hearing loss, which he asserts was incurred in or caused by military service due to excessive noise exposure. Under the relevant laws and regulations, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show (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, 1166-67 (Fed. Cir. 2004). 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 (Hz) is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between the current hearing loss and a disability or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the Board determines that service connection is not warranted for bilateral hearing loss, as the Veteran does not have current hearing loss for VA purposes. The Board notes that the Veteran's Service Treatment Records (STRs) do indicate a threshold shift in his hearing. On his Separation examination, the Veteran checked “yes” for hearing loss and described that he experienced some hearing loss in the left ear during his tour in Afghanistan. See STRs. As a preliminary matter, the Board concedes that the Veteran was exposed to significant noise during service. Specifically, the Veteran's competent and credible report of noise exposure to machine gun fire and numerous explosions within close range, as a motor transport operator, in conjunction with the medical evidence from the September 2010 and September 2019 VA examinations, are sufficient to establish acoustic trauma during service. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must have resulted in a hearing loss disability. In September 2010, the Veteran underwent an in-person General Medical Examinations. The Examiner noted that the Veterans hearing in both the right and left ears were grossly normal. See September 2010 Boston VAMC Examination Report. In February 2011, the Veteran was afforded a VA Examination, with claims file reviewed regarding bilateral hearing loss. The examiner reviewed the Veteran's military occupational specialty (MOS) and history of in-service noise exposure. The Veteran reported in-service noise exposure and denied occupational and recreational noise exposure in post-service. The speech discrimination test revealed a speech recognition ability of 94 percent in both ears. On the evaluation, his puretone thresholds, in decibels, were as follows: Frequency 500 Hz 1000Hz 2000Hz 3000Hz 4000Hz Average Left ear 15 15 5 10 15 11.25 Right ear 10 10 5 35 10 15 The VA examiner stated that the Veteran’s STRs showed threshold shifts during Military service. The examiner noted that the Veteran’s hearing in the left ear is within normal limits; and that a mild notch at 300 Hz in the right ear is non-disabling and it appears that the Veteran entered service with this mild notch, according to the medical records. See February 2011 VA Examination. The Veteran was afforded an Audiology Examination in September 2019. The speech discrimination test revealed a speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: Frequency 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Average Left ear 10 15 10 15 15 14 Right ear 10 20 10 35 20 21 The left ear was noted to be normal. The examiner found that the Veteran has sensorineural hearing loss in the right ear at a level that is not considered to be a disability for VA purposes. See September 2019 C&P Examination. The Board finds that the audiological testing of record shows that the Veteran has no current hearing loss disability for VA purposes, and, as such, there can be no valid claim for service connection for hearing loss. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Specifically, because the Veteran's auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is not 40 decibels or greater; his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater; and his speech recognition scores using the Maryland CNC Test are not less than 94 percent, the Veteran's claimed bilateral hearing loss is not a disability for the purposes of applying the laws administered by VA. 38 C.F.R. § 3.385 . Therefore, service connection for hearing loss is not warranted. Furthermore, while the Veteran is competent to report symptoms of a disability, he is not shown to have the specialized medical training required to render a diagnosis for a complex medical condition such as sensorineural hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence to establish that he has a current diagnosis of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to service connection for left hand paresthesia (left hand disability) In his Notice of Disagreement (NOD), the Veteran asserted that his hands are numb all the time. See April 2012 NOD. During Board Hearing, the Veteran stated that his left hand disability was the result of a c-spine strain sustained during boot camp. See December 2015 Hearing Transcript. As noted above, the three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, the Board concludes that the Veteran does not have a current diagnosis of a left hand disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of the Veteran’s Separation Examination shows that the Veteran marked “yes” for numbness and tingling. The Veteran further explained that some of his body parts recently have been numb/tingly and cold. See STRs. During a VA General Medical Examination, the Veteran reported sensation of numbness and tingling that occurs 1 time per week and lasts for 10-20 minutes. The Veteran stated that the onset of his symptoms was random, and that it is not associated with weakness. The examiner noted that left hand strength was normal throughout, including grip and that there was decrease sensation to light touch in the left palm, extending to the palmar surface of all the fingers. The examiner stated that the dorsal surface of the hand and the fingers are normal, the forearm is also normal; he indicated no parasthesia elicited with palpation of the cubital tunnel, reflexes are 2+ throughout (bilaterally and symmetric). See September 2010 VA Examination. In a December 2010 Addendum, the same examiner clarified that he had reviewed the Veteran’s recent electrodiagnostic testing and that there is no evidence for median, ulnar or radical neuropathy. The examiner concluded that he therefore believed that there was no compensable condition present at that time. See December 2010 Addendum. The Veteran was afforded another VA examination in September 2019. The examiner noted that Veteran reported no left-hand complaints including numbness and tingling. The Veteran was also said to have stated that he currently has no specific hand condition and is not sure why this was part of his claim. On examination, the left hand was noted as normal. No pain was noted on exam. There was no evidence of muscle atrophy or ankylosis. See September 2019 C&P Examination. Although the Veteran has previously reported symptoms of a left hand paresthesia, the diagnosis of this disability manifested by such symptoms requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Both the September 2010 and September 2019 VA medical examinations found no diagnosis of a left hand disability. Furthermore, the Veteran has stated during the September 2019 VA Examination, that he currently does not have any left hand disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer, 3 Vet. App. at 225. As there is no competent evidence of record showing that the Veteran has a current left hand disability, there is no basis upon which service connection can be awarded. See   Degmetich, 104 F.3d at 1333. Accordingly, service connection for left hand paresthesia is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.