Citation Nr: 21071253 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-56 753 DATE: November 30, 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 as defined by VA regulations in 38 C.F.R. § 3.385, 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 service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2001 to July 2005. In August 2019, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its August 2019 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In a March 2020 rating decision, the RO granted the Veteran's claims for service connection for bilateral hip and knee disabilities. The RO assigned 10 percent disability ratings effective November 12, 2014 for all of the Veteran's disabilities. As the Veteran has not expressed disagreement with either the ratings assigned or the effective date, such are considered full grants of the benefits sought on appeal and therefore the issues are not before the Board at this time. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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 or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time, he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). 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). The Veteran alleges that he has bilateral ear hearing loss as a result of his active-duty service. Specifically, he contends that he suffered acoustic trauma in service which has caused his claimed hearing loss. The Veteran's service treatment records are silent for complaints, treatment, or diagnoses related to bilateral hearing loss. On service enlistment examination in December 2000, pure tone thresholds, in decibels, were as follows: 500 1000 2000 3000 4000 6000 Right 5 0 15 0 0 15 Left 25 20 30 20 15 35 Speech recognition ability was not tested at the time. On July 2015 VA examination, pure tone thresholds, in decibels, were: 500 1000 2000 3000 4000 6000 8000 Avg Right 0 5 15 10 5 15 10 9 Left 5 15 20 20 10 20 5 16 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The examiner found that the Veteran had normal hearing in both ears. Furthermore, he found that there was not a permanent positive threshold shift greater than normal measurable variability at any frequency between 500 and 6000 Hz for either ear. In addition, he found that any bilateral hearing loss was less likely than not caused by or a result of the Veteran's military service. The examiner provided the rationale that the Veteran's hearing thresholds on examination were not significantly different than those obtained in service, which indicates that a significant change did not occur. As a threshold matter, the Board notes that VA defines a hearing loss disability as 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. With that in mind, the Board finds that, here, there is no evidence that the Veteran has a current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. In so finding, the Board is sympathetic to the Veteran's claims that he has bilateral hearing loss and does not doubt his statements regarding excessive or hazardous noise exposure in service. In fact, as indicated by his service-connected tinnitus, the Board concedes such noise exposure. However, unlike tinnitus, which is a simple disability diagnosable by lay observation, hearing loss is a more complex disability that cannot be diagnosed independently by the Veteran. Moreover, as noted above, VA specifically defines hearing loss disability as involving a certain threshold of impairment, confirmed by audiometric studies, which the Veteran has not been shown to meet under any audiometric test of record. Absent evidence that confirms a bilateral hearing loss disability for VA purposes, there is no valid claim of service connection, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. Brammer, 3 Vet. App. at 225. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.