Citation Nr: 21069302 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-22 067 DATE: November 18, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran does not have left ear hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1974 to May 1976. The Veteran also had active service in the Army Reserves and National Guard, to include periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in April 2021 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran asserts that service connection is warranted for left ear hearing loss due to acoustic trauma in service. See BVA hearing transcript (December 2019). 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. In April 2021 the Board remanded the issue of entitlement to service connection for left ear hearing loss to determine if the Veteran has a current hearing loss disability for VA compensation purposes. The Veteran was provided a VA examination in May 2021. The May 2021 VA examination shows the left ear with 94 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 25, with a 25 dB loss at 1000 Hz, a 20 dB loss at 2000 Hz, a 20 dB loss at 3000 Hz, and a 25 dB loss at 4000 Hz. The May 2021 examination shows that the Veteran does not have left ear hearing loss for VA compensation purposes. See VA medical examination (May 2021). Further, the record does not show a previous VA examination that reflects that the Veteran had left ear hearing loss for VA compensation purposes. See VA medical examination (March 2017). The Board acknowledges that the Veteran and spouse credibly and competently reported the Veteran's hearing problems. See BVA hearing transcript (December 2019). However, this finding does not satisfy the criteria for hearing loss for VA purposes. See 38 C.F.R. § 3.385. Since the May 2021 VA examination, the Veteran has not reported that his hearing loss has worsened since that time. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has a left ear hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current left ear hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current 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). As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have a current left ear hearing loss disability for VA purposes, service connection for left ear hearing loss cannot be granted. Palczewski. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.