Citation Nr: 21064333 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-10 921A DATE: October 19, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a right ear hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 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 1979 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript is of record. The Board remanded the issue on appeal, as well as entitlement to service connection for left ear hearing loss, in June 2021 for additional development that has since been completed. Service connection for a left ear hearing loss disability was granted in a September 2021 rating decision. Hence, that issue is no longer on appeal before the Board. Service connection for right ear hearing loss is denied. The Veteran seeks service connection for right ear hearing loss. He contends his right ear hearing loss is related to in-service noise exposure from firearms. See, e.g., November 2010 correspondence. For the reasons that follow, the Board finds that entitlement to service connection for right ear hearing loss is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. § 3.385. In this case, the Veteran's DD Form 214 indicates his military occupational specialty was 'infantryman.' He was awarded the Dragon Gunner (expert), the M-16 rifle (expert), and hand-grenade (sharpshoot) badges. The Veteran's reported in-service noise exposure is consistent with the circumstances of his military service. As such, the Board concedes the Veteran had noise exposure in service. 38 U.S.C. § 1154 (a). Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to his in-service noise exposure. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While in-service noise exposure is conceded, the Veteran's available service treatment records are silent for complaints of, treatment for, and/or a diagnosis of hearing loss. His January 1979 enlistment report of medical examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 A February 1980 report of medical examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 10 0 While the Veteran opted out of a separation medical examination, there is also no contemporaneous medical diagnosis of a right ear hearing loss disability that meets the standard of 38 C.F.R. § 3.385 within a year of separation from service. In a November 2010 correspondence, the Veteran's common-law wife reports that the he has always had trouble with his ears, including turning the TV up and requiring her to repeat herself when talking to him. A July 2011 VA examination indicates the Veteran's history is significant for miliary noise exposure and rare use of provided protective devices in-service. The examiner noted the Veteran did not have complaints of hearing difficulty and right ear hearing was within normal limits for rating purposes. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. A March 2017 VA treatment record notes right ear hearing was within normal limits except for a mild loss at 6000 Hz. The associated audiogram report was obtained in compliance with the Board's June 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). A subsequent March 2017 VA treatment record shows an audio evaluation revealed no change in the right ear. A March 2017 VA treatment record also notes asymmetric mixed hearing loss, left greater than right that is most likely secondary to ballistics exposure. A December 2018 VA treatment record indicates review was negative for hearing loss. In April 2017, the Veteran testified to noticing hearing loss once he arrived at Fort McClellan. See April 2017 Board hearing transcript at page 17. In compliance with the Board's prior remand directives, the Veteran underwent a VA examination in August 2021. The examiner noted sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 10 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. After a review of the evidentiary record, the Board finds the preponderance of the evidence weighs against finding entitlement to service connection for a right ear hearing loss disability. The Board concludes the Veteran has not had a diagnosed right ear hearing loss disability for VA purposes at any time during or approximate to the appeal period. In reaching this conclusion, the Board acknowledges the Veteran and his wife have reported right ear hearing loss since service. The Board recognizes that they are competent to describe impaired hearing, which is within the realm of their personal experience. 38 C.F.R. § 3.159. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, determining whether a hearing loss disability exists, as defined by 38 C.F.R. § 3.385, is not a simple medical determination because the diagnosis is based on results of audiology testing. A hearing loss disability under 38 C.F.R. § 3.385 is also not a condition under case law that has been found to be capable of lay observation. For these reasons, the Veteran and his wife, as laypeople, are not competent to state that his level of impaired hearing reaches the level of the legal standards of a hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385. The August 2021 and July 2011 VA examiners evaluated the Veteran and determined that, while he experienced subjective symptoms of right ear hearing loss, he does not have a diagnosis of right ear hearing loss for VA purposes. The VA examiners are audiologists who are competent to assess hearing loss disabilities. Consequently, the Board gives more probative weight to the VA examiners' findings. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Accordingly, service connection for right ear hearing loss is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.