Citation Nr: 21067892 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-23 267 DATE: November 5, 2021 ORDER The application to reopen the previously denied claim for service connection for right ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. Service connection for hearing loss was denied by rating decision in May 2004. The Veteran did not appeal. 2. Evidence received since the May 25, 2004 rating decision is both new and material to the issue of service connection for right ear hearing loss. 3. The preponderance of the evidence is against a finding the Veteran has a hearing loss disability of the right ear that meets VA regulatory requirements. CONCLUSIONS OF LAW 1. The criteria to reopen the previously denied claim of service connection have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from May 1983 to December 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In August 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. Previously Denied Claim The Veteran originally filed a claim for service connection of bilateral hearing loss in February 2003 and the RO denied the claim for lack of a diagnosis in a May 2004 rating decision. The Veteran did not submit new evidence or initiate an appeal of the decision and it, therefore, become final in May 2005. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Veteran submitted a request to reopen his claim in June 2017. Evidence received since the previous denial includes VA audiology evaluations, lay statements, and VA treatment records. The Board finds the newly submitted evidence material to the issue of service connection as it relates to whether the Veteran has a current right ear hearing loss disability and medical diagnosis. Therefore, the claim to reopen the previous denial of service connection for right ear hearing loss is granted. Service connection was granted for hearing loss of the left ear in June 2019, and the Board acknowledges the Veteran currently has a pending appeal for an increased rating claim for his service-connected left ear hearing loss. That appeal will be adjudicated in the Appeals Modernization Act (AMA) system and delivered in a separate decision by the Board. Service Connection 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, such as sensorineural hearing loss, 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 (typically one year); 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability for which service connection may be granted 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. 1. Entitlement to service connection for right ear hearing loss The Veteran contends he is entitled to service connection for right ear hearing loss. He asserts he has hearing loss in both ears as a result of hazardous noise exposure due to his military occupational specialty (MOS) of construction equipment operator. The Veteran reports exposure to explosives, tank, and heavy machinery noise. 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 an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hearing loss of the left ear and evidence shows that hazardous noise exposure occurred in service, the preponderance of the evidence weighs against finding that the Veteran has a hearing loss disability in the right ear. Vital to this case, impaired hearing will only be considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. Following the Veteran's request to reopen his claim, he was provided an initial VA examination in February 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 20 10 Speech recognition results using the Maryland CNC word list show a 100 percent acuity in the right ear. The examiner noted hearing loss is not present in the Veteran's right ear as threshold in the 250-8000 Hz range are within normal limits. The Veteran was provided another VA examination in September 2019. The examiner noted the Veteran has bilateral sensorineural hearing loss, however, audiometric results do not support a finding the Veteran's hearing acuity rises to the statutory threshold required for service connection. Objective findings reveal Puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 30 30 Word recognition testing using the Maryland CNC word list shows a 100 percent acuity in the right ear. Based on audiometric results and word recognition scores, the Veteran's right ear hearing does not constitute a disability for VA purposes. At his August 2021 hearing, the Veteran requested the record be held open to allow submission of a recent audiological evaluation. VA audiological evaluations provided on August 25, 2021 and June 2, 2017 were submitted in support of the claim. However, the August 2021 evaluation continues to show right ear hearing within normal limits. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 25 The June 2017 hearing evaluation includes pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 15 20 Speech audiometry revealed a speech recognition ability of 100 percent in the right ear at the August 2021 and June 2017 examinations. However, the August 2021 examiner indicated CID W-22 word recognition testing was utilized rather than the Maryland CNC as required for rating purposes. Similarly, the June 2021 examiner indicated the NU-6 word list was utilized to obtain speech recognition scores. The Board does not find remand necessary to obtain clarification on speech recognition scores as it would not serve to benefit the Veteran. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Maryland CNC testing consistently reveals a 100 percent acuity at VA examination, and the remainder of the medical evidence does not show audiological results nearing the statutory requirements. Further, while the evidence shows the Veteran has been issued hearing aids for both ears, VA treatment throughout the appeal period confirms the Veteran's hearing loss disability is unilateral, with sensorineural hearing loss demonstrated in the left ear only. The Board finds that the Veteran's current hearing acuity in the right ear does not meet the regulatory definition of a hearing loss disability. The Veteran's reports of exposure to hazardous noise during service are credible, however, there is no objective evidence of right ear hearing loss that rises to the level of a "disability" for VA compensation purposes. While the Board does not doubt the Veteran's statements that he has problems communicating when not directly facing the speaker and requires hearing aids for his employment, there is no objective evidence of loss of hearing in the right ear that rises to the level of severity such that it constitutes a disability under 38 C.F.R. § 3.385. The Veteran is competent to report observable symptomology and experiences, however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Thus, he does not meet the threshold requirement of a current diagnosis. Without such diagnosis, service connection cannot be established under any theory of entitlement. The existence of a current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability there can be no valid claim. See Brammer v. Brown, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives significant consideration to the Veteran's assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss as defined by VA regulation, and has not had one at any time during the pendency of the claim or recent to the filing of the claim, therefore the claim for service connection must be denied. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.