Citation Nr: 20052905 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-15 571A DATE: August 10, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The evidence pertinent to this claim process does not substantiate a current hearing loss disability in the right ear. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from May 2003 to May 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board reopened and remanded this claim for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied service connection for a left knee disorder and granted service connection for an upper-gastrointestinal disorder, issues on appeal at that time. The Board’s decision with respect to those claims, and with respect to reopening of service connection for right ear hearing loss, is final. See 38 C.F.R. § 20.1100. VA added additional treatment records to the claims file subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction (AOJ) (Record 06/12/2020), (Record 07/24/2020). The Board has reviewed these records and has determined that they are not relevant to the current appeal. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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. 38 C.F.R. § 3.385. When audiometric test results at 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, 5 Vet. App. 155. In a case where the degree of hearing loss noted on a veteran’s entrance examination did not meet VA’s definition of a “disability” for hearing loss under § 3.385, the United States Court of Appeals for Veterans Claims (Veterans Court) held that that veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111. Further, the Veterans Court held that the demonstrated hearing loss was not a “defect”; and that the term “defect” should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for right ear hearing loss. The Board notes that service connection is currently in effect for left ear hearing loss and for tinnitus, based on noise exposure in service. Accordingly, such noise exposure is acknowledged. The Veteran’s service treatment records appear to have been damaged, but to an unknown extent. Accordingly, VA’s duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). A report of medical examination performed on January 31, 2007, at service separation, reveals normal findings for the ears and hearing (Record 12/02/2014 at 8). However, pure tone thresholds revealed a hearing loss disability for VA purposes at that time, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 30 30 A report of medical history completed by the Veteran on the same day reveals his report that he had no history of, or current, ear trouble; however, he reported trouble hearing in his left ear (Record 12/02/2014 at 11). The Veteran was separated from service on May 25, 2007. He filed his initial claim on April 30, 2008. That claim was denied with respect to right ear hearing loss in April 2010. As found by the Board in September 2018, the April 2010 decision became final, but was reopened due to receipt of new and material evidence. The Veteran filed the current claim on November 13, 2014. A March 5, 2008, VA Primary Care Note reveals the Veteran’s hearing was normal at that time (Record 05/02/2016 at 68). An April 22, 2008, VA audiology consult reveals that hearing in the right ear was within normal limits through 6000 Hertz, with a mild sensorineural hearing loss at 8000 Hertz. Speech discrimination was 96 percent (Record 02/04/2020 at 139). On examination in July 2009, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 20 Speech recognition was 100 percent (Record 07/14/2009). The Veteran was apparently examined in January 2016. As found in the Board’s remand, a copy of that examination report could not be located in the claims file. The AOJ was instructed to either obtain a copy of that report or provide the Veteran a new examination for right ear hearing loss. The AOJ obtained a new examination. The report of a July 2019 VA examination reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 20 The examiner diagnosed normal hearing in the right ear. An opinion was not provided as there was no hearing loss disability (Record 07/29/2019). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for right ear hearing loss have not been met. The Veterans Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, here, there is no right ear hearing loss at any time during the claim process. Although the April 2008, VA audiology consult reveals mild sensorineural hearing loss at 8000 Hertz, this is beyond the range considered as a hearing loss disability for VA purposes. Hearing was normal through 6000 Hertz, which is the range considered for VA purposes. While the Veteran had pure tone thresholds at service separation that indicated a disability at that time, that was not during the current claim process. The Veterans Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain, 21 Vet. App. 319. However, Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability during the period of the claim. See 38 U.S.C. § 1110. Hence, where the evidence does not support a finding of current disability in the context of the claim on appeal, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In sum, the Board finds that there is no current right ear hearing loss disability for VA purposes. In light of this finding of fact, the Board concludes that service connection for the claimed right ear hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.