Citation Nr: 21003799 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-47 321 DATE: January 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT There is no currently diagnosed bilateral hearing loss disability for VA purposes that was incurred in or caused by service CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 2000 to October 2000 and from September 2001 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain a current examination regarding the etiology and severity of the Veteran’s claimed bilateral hearing loss. The RO obtained a relevant examination in September 2020. As such, the Board finds that the AOJ substantially complied with the directives in the July 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bilateral Hearing Loss Legal Criteria Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss or tinnitus within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as hearing loss, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Analysis The Board finds that the probative evidence of record does not document that the Veteran has a current diagnosis of any hearing loss disability for VA purposes. As such, service connection is not warranted on direct or presumptive bases for the claimed disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board has thoroughly reviewed the Veteran’s medical records. The Veteran’s service treatment records (STRs) contain no treatment, diagnoses, or complaints of symptoms associated with hearing loss. Additionally, the Veteran was provided with July 2015 and April 2016 VA Hearing Loss examinations, however, the findings of these examinations do not differ significantly from the below cited VA examination. The Veteran was most recently provided with a September 2020 VA Hearing Loss examination in response to the Board’s July 2020 remand. Pertinently, the audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 10 10 5 10 10 8.75 LEFT 10 10 5 5 10 7.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. As noted above, 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, or 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. The Veteran’s hearing loss does not meet these requirements. Based on the above, the Board does not find evidence of any hearing loss disability for VA purposes at any time during the pendency of the appeal. The Board has considered the Veteran’s lay contentions and finds the lay statements are competent insofar as they report observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran asserts that his claimed conditions are related to his active service, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose complex conditions or to render medical nexus opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, to the extent the Veteran asserts that he has a current hearing loss condition for VA purposes, such statements are inconsistent with the medical evidence of record that does not document any relevant diagnosis at any time during the pendency of the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Thus, notwithstanding his assertion that he has a bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current hearing loss disability for VA purposes. See Palczewski, supra. As the evidence establishes that the Veteran does not have a current disability for VA purposes concerning his claimed bilateral hearing loss and has not had such disability at any point during the pendency of the appeal, the preponderance of the evidence is against the claim of entitlement to service connection. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.