Citation Nr: 21003250 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-31 457 DATE: January 21, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT At no time during the pendency of the claim has the Veteran had a current bilateral hearing loss disability as defined by VA regulations, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2004 to April 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in May 2019. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in November 2019 at which it was remanded for additional development. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Certain chronic diseases, such as hearing loss, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). For the purposes of applying the laws administered by VA, 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. 38 C.F.R. § 3.385. Analysis The Veteran contends that he experienced acoustic trauma during his military service as a radio operator and first began experiencing hearing loss during his military service. As an initial matter, the Board finds that the Veteran’s allegations regarding his in-service noise exposure to be competent and credible. Specifically, the Veteran’s service personnel records show that he served as a radio operator which is consistent with the Veteran’s claim of noise exposure. Therefore, the Board acknowledges that the Veteran was exposed to loud noise in service. The Veteran’s service treatment records are negative for hearing loss. Significantly, the Veteran’s December 2007 separation examination shows normal hearing. In December 2014, the Veteran submitted an initial claim for service connection for bilateral hearing loss. In connection with this claim he was afforded a VA audiological examination in April 2015 which shows the following puretone thresholds: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 dB 10 dB 20 dB 25 dB 10 dB Left Ear 20 dB 15 dB 20 dB 15 dB 10 dB Speech Recognition was 98 percent bilaterally. Significantly, the April 2015 hearing thresholds did not meet the criteria for disability under VA regulations. Subsequently, during the May 2019 Board hearing, the Veteran testified that his hearing was worse since his last examination. Thereafter, the Veteran underwent private audiological testing in June 2019, which appears to continue to show hearing that does not qualify as a disability for VA compensation purposes. However, it is unclear whether the June 2019 private audiological examination was conducted by a state-licensed audiologist and the report does not include a controlled speech discrimination test (Maryland CNC), which is an alternate way of confirming disability for compensation purposes. Regardless, no threshold was 26 or higher. Pursuant to the November 2019 Board remand, the Veteran was afforded another VA examination in December 2019 which shows the following puretone thresholds: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 dB 10 dB 15 dB 15 dB 15 dB Left Ear 10 dB 15 dB 20 dB 30 dB 30 dB Speech Recognition was 100 percent on the right ear and 96 percent on the left ear. Significantly, the December 2019 hearing thresholds also do not meet the criteria for disability under VA regulations. Based on the foregoing, the Board finds that the Veteran does not have a current bilateral hearing loss disability under 38 C.F.R. § 3.385 as audiometric testing fails to reveal that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater or that the auditory threshold in at least three frequencies are 26 decibels or greater; or that the speech recognition score using the Maryland CNC Test are less than 94 percent. In this regard, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In this case, there is no indication that the Veteran has ever met the criteria for a diagnosis of hearing loss pursuant to 38 C.F.R. § 3.385. While the Veteran believes he has a current diagnosis of bilateral hearing loss, and indeed the Board does not question that he experiences decreased hearing ability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). At this time, his hearing loss has not reached the level of severity that qualifies as a diagnosis for VA compensation purposes. Consequently, the Board gives more probative weight to the competent medical evidence. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.