Citation Nr: 21070228 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-18 189 DATE: November 23, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have hearing loss meeting the definition of a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. In May 2021 the Board remanded the Veteran's hearing loss claim for additional records development. The claim has now been returned to the Board. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss due to in-service exposure to hazardous noise from gunfire and mortars in his work as a fighting vehicle infantryman. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more and hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, 38 C.F.R. § 3.385 provides that 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 more; when the auditory thresholds for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran underwent a VA audiology examination in February 2013 which failed to show that the Veteran suffers from a current hearing loss disability for VA purposes, as all puretone thresholds were 25 decibels or less at the relevant frequencies and speech discrimination scores for both ears were 96 percent. On a more recent VA examination in March 2020, the examiner diagnosed right ear sensorineural hearing loss. However, the examination failed to show that the Veteran suffers from a current hearing loss disability for VA purposes. The examiner indicated right ear puretone thresholds of 5, 10, 10, 35, 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The Veteran's speech discrimination score was 100 percent in the right ear. The examiner indicated left ear puretone thresholds of 10, 10, 10, 25, 20 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The Veteran's speech discrimination score was 96 percent in the left ear. These audiometric findings do not meet the criteria to establish a hearing loss disability under VA regulation in either ear. The Board notes that service treatment records contain a December 1984 Report of Medical History in which the Veteran reported hearing loss. At the Veteran's separation examination conducted the same month, audiometric testing initially indicated a high frequency hearing loss disability, with a puretone threshold of 60 decibels bilaterally at 4000 Hertz. A provisional diagnosis of bilateral high frequency hearing loss was noted and the Veteran was referred for further evaluation and testing. However, the initial result was not confirmed upon further testing, which instead indicated puretone thresholds of 25 decibels in the right ear and 15 decibels in the left ear at 4000 Hertz. Hence, a chronic hearing loss disability was not shown during service. 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 Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The Board acknowledges that the VA examiner gave a positive nexus opinion regarding the right ear. However, the Veteran has not exhibited hearing loss in either ear that meets the criteria for disability under 38 C.F.R. § 3.385 during VA audiometric testing conducted in conjunction with his claim. Without probative evidence of a current hearing loss disability, service connection cannot be established, and the claim must be denied. The Board acknowledges the Veteran's reports that his decreased hearing acuity has resulted in functional impairment in that he has trouble understanding speech and hearing soft sounds and has difficulty hearing during telephone calls. In Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit held that even in the absence of a diagnosis, there is a current disability where a veteran experiences functional impairment from symptoms of a disorder. 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, since VA has specifically defined what constitutes a hearing loss disability in 38 C.F.R. § 3.385, the Federal Circuit's holding in Saunders is not applicable to a claim for service connection for hearing loss. See McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (concluding that § 3.385 "reasonably interpreted what constitutes a hearing disability"). In sum, the most probative evidence is against the claim, and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.