Citation Nr: 21071307 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-25 579 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a current diagnosis of hearing loss for VA purposes in either ear. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1995 to July 1999 and from December 1999 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. This game was previously before the Board in June 2021, at which time it was remanded for further development. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Bi-lateral Hearing Loss 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 of 500, 1000, 2000, 3000 or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2017). Even if disabling loss is not demonstrated at separation, a veteran many establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran's DD-214 reflects that his primary specialty during active service was a heating, venting, air conditioning and refrigeration craftsmen. The Veteran received a VA examination in September 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 25 30 LEFT 15 15 25 25 30 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Based on these results, the examiner found normal hearing bilaterally. A June 2020 audiology note reflects that the Veteran's hearing loss was normal through 2000 Hz, then hearing sloped to a mild to moderate sensorineural hearing loss. Word recognition ability was 96 percent in the right ear and 100 percent in the left ear. As a result, the examiner concluded that the Veteran could benefit from a "bilateral hearing aid trial." At the February 2021 Board hearing, the Veteran testified that he was currently wearing VA-issued hearing aids. Pursuant to the June 2021 Board remand, the Veteran received a VA examination in July 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 25 30 LEFT 15 15 15 25 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Based on the results of the examination, the examiner concluded that there was sensorineural hearing loss bilaterally. Despite the conclusions rendered by the July 2021 VA examiner, the record does not include evidence of a pure tone threshold of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz; pure tone thresholds of 26 decibels or greater at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or any speech recognition scores using the Maryland CNC Test less than 94 percent. 38 C.F.R. § 3.385. The Board acknowledges the Veteran's assertion that his hearing has been a problem since service, but whether the Veteran has a disability due to impaired hearing for VA purposes is clearly defined by regulations. Unfortunately, the evidence shows the Veteran does not have a current hearing disability for VA purposes. As such, the Board finds that the evidence of record did not demonstrate a hearing disability for VA purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent competent evidence reflecting the current presence of the claimed disability, a basis upon which to establish service connection for bilateral hearing loss has not been presented and the appeal must be denied. Brammer, 3 Vet. App. at 225. Because a hearing disability for VA purposes has not been shown, the preponderance of the evidence is against this service connection claim, the benefit of the doubt rule does not apply, and the claim of entitlement to service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.