Citation Nr: 21066540 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-63 919 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not a disability for Department of Veterans Affairs (VA) purposes per VA regulations. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from May 1991 to May 1995. The issues come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law judge. The transcript is of record. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While hearing loss is not a disease specifically enumerated as a chronic disease under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. Accordingly, service connection may be granted on a presumptive basis for sensorineural hearing loss if it is shown to manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that he is entitled to service connection for bilateral hearing loss during active service. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of these frequencies are 26 dB or greater, or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran did not have a current bilateral hearing loss disability for VA purposes at any time since this claim was submitted. As such, the claim of the entitlement to service connection must be denied. The Veteran was afforded a VA examination in December 2015. See December 2015 VA Examination. Audiometric testing revealed Puretone thresholds, in decibels, were as follows: The Veteran's Maryland CNC score for word recognition was 100% for his right ear and 100% for his left ear. The clinician determined that the Veteran had normal hearing in his right ear from 500 Hz to 8000 Hz. The VA examiner also determined that the Veteran had normal hearing in his left ear through from 500 Hz to 8000 Hz. The Veteran attended a private audiogram in August 2016. See August 2016 Medical Treatment Records. Audiometric testing revealed Puretone thresholds, in decibels, were as follows: (Continued on the next page) Right Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 5 10 15 15 10 10 10 Left Ear 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 0 5 5 10 5 20 30 The Veteran's score for word recognition was 97% for his right ear and 95% for his left ear. Notably, audiograms that do not use the Maryland CNC method for the speech discrimination portion of the examination are not valid for rating purposes. It is unclear whether the private audiogram utilized the Maryland CNC method in determining speech discrimination. The Veteran attended a VA examination in March 2017. See March 2017 VA Examination. Audiometric testing revealed Puretone thresholds, in decibels, were as follows: The Veteran's Maryland CNC score for word recognition was 100% for his right ear and 100% for his left ear. The clinician determined that the Veteran had normal hearing in his right ear from 500 Hz to 8000 Hz. The VA examiner also determined that the Veteran had normal hearing in his left ear through from 500 Hz to 8000 Hz. The Veteran's post service clinical treatment records do not include any current hearing loss diagnosis nor evidence of hearing loss for VA purposes for the Veteran's ears. Notably, the Veteran contended at his Board hearing that his hearing loss symptoms have "maintained at [the] same level" since his discharge from service. See July 2021 Hearing Transcript. To the extent that the Veteran has alleged that the Veteran had hearing loss of his bilateral ears for VA purposes, the Board finds this allegation without probative value. The determination of the presence of hearing loss for VA purposes requires specialized testing and interpretation of the test results. As a lay person, the Veteran is not competent to provide this evidence as he does not have the requisite medical training to interpret the results. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a present hearing loss disability as defined by VA at any time since the claim has been filed, and the claim must fail on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Veteran's bilateral hearing loss did not rise to the level required to be considered disabling for VA purposes. As a current diagnosis of hearing loss per VA regulations is not shown for the period at issue and since the preponderance of the evidence weights against claim, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, the claim for service connection must be denied. (Continued on the next page) (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.