Citation Nr: 21002208 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-62 011 DATE: January 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran does not have hearing loss in the right ear that meets the VA criteria for being a disability. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran presented testimony on this issue at a November 2019 video conference hearing held at his local RO before the undersigned Veterans Law Judge. A transcript is of record. Addressing the relevant procedural history, this case was previously before the Board in April of 2020 at which time it was remanded for additional development, to specifically include obtaining a new VA examination and opinion. The case has now been returned to the Board for further development. As an initial matter, this claim was originally for bilateral hearing loss. In lieu of the development that was undertaken on remand, the Board has divided this case into two separate issues. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that he has a right ear hearing loss condition that was caused by or is related to his active duty. However, based on the competent, probative medical evidence of record, the Veteran does not have hearing loss of the right ear for VA purposes. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the competent, probative medical evidence of record indicates that the Veteran does not have right ear hearing loss for VA purposes. Therefore, service connection is not warranted for this condition as a matter of law. Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or, when the auditory threshold 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this instance, the evidence of record weighs against indicating that the Veteran has hearing loss for VA purposes in his right ear. In contrast, at the October 2020 Compensation and Pension examination, audiometric testing yielded the following findings: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 20 The Veteran’s right ear average pure tone threshold was 23.75 (rounded to 24). Additionally, the Veteran’s Maryland CNC speech recognition was 96 percent in the right ear. Based on the audiometric findings, the Veteran does not have right ear hearing loss for VA purposes. The Veteran does not have an auditory threshold in any of the frequencies at 40 decibels or greater nor, do at least three frequencies have a decibel of 26 or greater with a speech recognition score less than 94 percent. The Board acknowledges the Veteran’s assertions that his current right ear hearing loss is related to his military service. The Veteran is competent to report on matters observed within his respective personal knowledge, such as observed right eye hearing loss symptomology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the diagnosis and etiology of hearing loss for VA purposes is not a matter capable of lay observation and requires medical expertise to determine as it is based on specific audiological measurements. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Veteran’s statements, while acknowledged, lack probative value. The Board reiterates that the medical evidence of record indicates that the Veteran does not have a right ear hearing loss condition for VA purposes. Accordingly, the Board finds that the evidence of record is against a finding of service connection for right ear hearing loss. As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. While a contemporaneous examination is of record, this examination does not provide a sufficient basis upon which to decide the claim. Unfortunately, the Compensation and Pension examination and opinion administered and authored in October 2020 in order to comply with the Board’s remand also lacks sufficient rationale. For inexplicable reasons, this examiner stated as rationale in authoring a negative nexus opinion that, “The documentation of hearing within normal limits at induction, documentation of hearing within normal limits at separation, and the lack of documentation of an OSHA-defined STS during military service indicate that it is NOT at least as likely as not (50/50 probability) that veteran’s current hearing loss and tinnitus condition is related to his military service.” Unfortunately, this stated rationale is identical to that provided in the 2016 VA opinion that necessitated the remand. Thus, the Board cannot make a fully-informed decision on the matter until it is remanded once again to obtain a new VA opinion that complies with the fact that an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran’s military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s left ear hearing loss, who should be a different examiner than any of the examiners who have authored any of the opinions currently of record. The clinician must be provided with and review the entire claims file, to include a copy of this remand and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In so opining, the examiner is specifically asked to address the Veteran’s conceded exposure to noxious noise sustained during active duty and his military occupational specialty (MOS). The examiner should address whether there could have been delayed onset of hearing loss due to noise exposure in service. The clinician is also advised that the absence of medical records corroborating an in-service injury or disease CANNOT be used as the sole basis for finding no nexus between a current disability and the Veteran’s military service and will necessitate an additional remand for a new opinion. 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.