Citation Nr: 21070904 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-02 169 DATE: November 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current diagnosis of a bilateral hearing loss disability for VA purposes, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1985 to January 1989, to include over three years of sea service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2021, the Board granted the issue of service connection for tinnitus and remanded the issue of service connection for bilateral hearing loss. The Board's directives of obtaining the Veteran's VA treatment records and to schedule the Veteran for a new VA examination have been completed, and the Board finds substantial compliance with its directives. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 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. A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for bilateral hearing loss. The Veteran claims that he was a boiler technician in service and was exposed to loud boiler machinery, which led to his current hearing loss. See May 2013 VA examination and March 2021 Hearing Transcript. Service treatment records show that in December 1988, the Veteran participated in a hearing conservation program. It was reported that the Veteran had a threshold shift noted during the last annual audiogram. Subsequently, a few days later, his hearing was noted to have improved. It was noted that the first audiogram was likely inaccurate. The Veteran's December 1988 Report of Medical Examination and December 1988 Report of Medical History were silent for any signs, symptoms, complaints, or diagnosis of hearing loss for VA purposes. On his August 1989 Report of Medical History, the Veteran checked "no" to having hearing loss. The Veteran's DD-214 shows that his military occupational specialty (MOS) was a Boiler Technician. The Veteran's statements regarding loud noise exposure are consistent with his duties in the military. Thus, the Board concedes that loud noise exposure occurred while the Veteran served on active duty in the military. However, the Veteran's post service treatment records do not show that the Veteran has a diagnosis of bilateral hearing loss for VA purposes. In May 2013, the Veteran was afforded a VA examination for bilateral hearing loss and tinnitus. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 30 LEFT 15 15 10 20 30 The Veteran's Maryland CNC test scores were 96 percent in the right ear and 98 percent in the left ear. Although the VA examiner diagnosed the Veteran with sensorineural hearing loss in the right and left ears, the Veteran did not meet the VA hearing loss criteria under 38 C.F.R. § 3.385. Most recently, in September 2021, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran's Maryland CNC test scores were 98 percent in the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 30 35 LEFT 20 20 20 30 35 Although the VA examiner diagnosed the Veteran with sensorineural hearing loss in the right and left ears, the Veteran did not meet the VA hearing loss criteria under 38 C.F.R. § 3.385. Given the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has had bilateral hearing loss at any time during, or prior to, the pendency of his claim. Neither VA examination (both of which appear adequate, as they contain sufficient information regarding the Veteran's current disabilities) found that the Veteran's hearing loss has diminished to a point to be considered a disability for VA purposes. There is no other evidence reflecting that the Veteran has hearing loss that meets VA's definition. To the extent that the Veteran contends he has hearing loss, such a determination is made on the results of objective audiometric testing and, unlike tinnitus, is therefore not a disability that may be diagnosed on lay observation alone. In the absence of proof of a current bilateral hearing loss disability at any time in proximity to the Veteran's current claim for service connection, there is no doubt to be resolved and his claim for service connection must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.385; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.