Citation Nr: 21000847 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-38 467 DATE: January 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, right ear hearing loss for VA purposes. 2. The evidence is in relative equipoise as to whether the Veteran’s left ear hearing loss is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2000 to October 2008. Issues 1-2: Entitlement to service connection for right ear hearing loss and left ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system such as sensorineural hearing loss if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that he has had bilateral hearing loss since service. See, e.g., December 2010 claim and January 2020 Board hearing transcript. The Veteran testified in January 2020 that he had acoustic trauma during service as he was exposed to explosions and gunfire during service in Iraq. Service treatment records do not show the Veteran met the VA regulatory criteria for bilateral hearing loss. As for right ear hearing loss, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim. 38 C.F.R. § 3.303. On VA examination in October 2014, the Veteran did not meet the criteria for hearing loss. Word recognition was 94 percent. Puretone thresholds for the right ear in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 25, 25, 10, 15, and 10. On VA audiological examination in September 2020, puretone thresholds for the right ear in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 30, 35, 25, 20, and 25. The speech recognition score, using the Maryland CNC Test, was 100 percent in the left ear. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran believes that he has a current diagnosis of right ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it is based on audiometric findings and requires specialized medical education/knowledge to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence. As for left ear hearing loss, on VA audiological examination in September 2020, the Veteran had left ear hearing loss as he had 40 decibels at 4000 Hertz with a diagnosis of sensorineural hearing loss. The Board recognizes that the examiner opined that the Veteran’s left ear hearing loss was less likely as not related to service as the Veteran had normal hearing during service with no significant shifts in thresholds. However, this opinion is based on the Veteran’s normal left ear hearing during service and is therefore of limited probative value because the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). To the extent that the examiner determined that the Veteran’s work with heavy equipment and chain saws in the lumber industry caused his hearing loss, the Board points out that the Veteran during his January 2020 Board hearing testified that he worked for the Forest Service where he is required to use hearing protection. Moreover, the Veteran’s contentions are credible and consistent with the circumstances of his service, to include acoustic trauma, as his DD 214 Form shows that his military occupational specialty was a security forces craftsman. Considering the claim for service connection for left ear hearing loss, in light of the record and the governing legal authority, the Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is in relative equipoise on the question of a nexus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.