Citation Nr: 21002254 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-50 602 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have right or left ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2019). 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1998 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2019, the Veteran appeared at a Board hearing and testified before the undersigned Veterans Law Judge. The Board finds that there has been substantial compliance with the prior January 2020 remand directives, regarding service connection for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268 (1998). The issue was remanded for an updated examination. Accordingly, the Board will proceed with adjudication. In a July 2020 rating decision, the RO granted service connection for bilateral knee patellofemoral syndrome, effective November 8, 2013; bilateral hip femoroacetabular impingement, effective November 8, 2013; and tinnitus, effective March 6, 2020. The RO noted that this was a considered a full grant of the benefits on appeal. The Veteran has not expressed disagreement with this rating decision. The July 2020 rating decision represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Service Connection 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 (2012); 38 C.F.R. § 3.303(a) (2017). 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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for left ear hearing loss 2. Entitlement to service connection for right ear hearing loss During the October 2019 Board hearing, the Veteran alleged hearing loss onset during service. Additionally, the Veteran asserted his hearing loss is related to in-service occupational noise exposure. The Board finds that there is no right or left hearing loss. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. See 38 C.F.R. § 3.385 (2018). The Veteran received VA audiological examinations in February 2016 and March 2020. The February 2016 results showed that the Veteran’s auditory thresholds at the frequencies of 500 to 4000 hertz were 20 decibels or less and his speech recognition scores were 100 percent. The examination report indicated the Veteran had normal hearing in the bilateral ears. The March 2020 examination report showed that the Veteran’s auditory thresholds at frequencies of 500 to 4000 hertz were 20 decibels or less and his speech recognition scores were 94 and 96 percent. The examiner determined the Veteran had normal hearing in the left ear, but right ear hearing loss. Although the examiner provided that opinion and a positive nexus opinion regarding the right ear, the findings do not meet the criteria for a VA hearing loss. Although the Veteran stated that he has hearing loss, his statements are not competent to establish the existence of a hearing loss disability for VA purposes, which requires audiometric testing and particular results, as opposed to observing symptoms of diminished hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.