Citation Nr: 21001218 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-19 719 DATE: January 7, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran does not have a current diagnosis of right ear hearing loss per Department of Veterans Affairs (VA) regulations. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from June 1990 to May 1997. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim was previously before the Board in September 2017 where it remanded entitlement to service connection for bilateral hearing loss. In January 2019, the RO granted entitlement to service connection for left ear hearing loss effective January 5, 2019. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran 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' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While hearing loss is not a disease specifically enumerated as a chronic disease under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. Accordingly, service connection may be granted on a presumptive basis for sensorineural hearing loss if it is shown to manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 C.F.R. §§ 3.307, 3.309(a). Entitlement to service connection for right ear hearing loss The Veteran contends he is entitled to service connection for right ear hearing loss during active service. The Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran does not have a current right ear hearing loss disability for VA purposes at any time since this claim has been submitted. As such, the Veteran's claim of entitlement to service connection must be denied. The Veteran attended a VA examination in September 2011. Audiometric testing revealed Puretone thresholds, in decibels, were as follows: The Veteran’s Maryland CNC score for word recognition was 96% for the right ear. The VA examiner determined that the Veteran had normal hearing in the right ear. The Veteran attended another VA examination in January 2019. Audiometric testing revealed hearing within normal limits per VA standards. Puretone thresholds, in decibels, were as follows: The Veteran’s Maryland CNC score for word recognition was 96% for the right ear. The VA examiner noted sensorineural hearing loss in the right ear and opined that the Veteran’s right ear hearing loss is not caused by or the result of military service. The Board notes the audiometry scores documented in January 2019 do not document the presence of hearing loss for for VA purposes. The Veteran’s post service clinical treatment records do not include any current hearing loss diagnosis nor evidence of hearing loss for VA purposes for the Veteran’s right ear. To the extent that the Veteran has alleged he has hearing loss for VA purposes, the Board finds this allegation without probative value. The determination of the presence of hearing loss for VA purposes requires specialized testing and interpretation of the test results. As a lay person, the Veteran is not competent to provide this evidence as he does not have the requisite medical training to interpret the results. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a present hearing loss disability as defined by VA at any time since the claim has been filed, and the claim must fail on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Veteran's right ear hearing loss has not risen to the level required to be considered disabling for VA purposes. As a current diagnosis of hearing loss per VA regulations is not shown for the period at issue and since the preponderance of the evidence weights against the Veteran, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, the claim for service connection must be denied.   G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.