Citation Nr: 21071609 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-03 683 DATE: November 30, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT According to the results of audiometric testing, the Veteran does not have sufficient hearing loss in his left ear to in turn be considered a ratable disability for VA compensation purposes. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for left ear hearing loss. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March to June 1971. This appeal to the Board of Veterans' Appeals (Board) is from a July 2017 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), confirming and continuing a prior denial of a claim for service connection for bilateral (left and right ear) hearing loss and determining there was not new and material evidence and consequently denying a petition to reopen a claim for service connection for tinnitus that also had been previously considered and denied. The Veteran testified in support of both claims during a hearing in January 2019 before the undersigned Veterans Law Judge of the Board. A subsequent February 2020 Board decision reopened these claims, but then in February 2020 and again in August 2021 remanded them back to the RO (AOJ) for further development and consideration including for reexamination and supplemental medical comment concerning the nature and etiology of these claimed disabilities, especially in terms of whether related or attributable to any head/eye injuries in service, if they first were confirmed to have occurred, and/or to exposure to rifle noise. There since has been the required compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). An October 2021 rating decision since issued, on remand, granted service connection for the Veteran's right ear hearing loss and for his tinnitus, retroactively effective from July 12, 2017, so back to the date of receipt of his claims for these disabilities. If he disagrees with the initial ratings and effective date assigned for these disabilities, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, as the Veteran's claim for service connection for left ear hearing loss continued to be denied on remand, it is again before this Board. Entitlement to service connection for left ear hearing loss The Veteran contends that, like his right ear hearing loss and tinnitus already determined to be service connected, he additionally has hearing loss in his left ear that is equally attributable to his service, as well. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Also, certain "chronic" disabilities, including sensorineural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran's separation from service (and assuming he had at least 90 days of service), although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.307, 3.309. Most fundamental to a service-connection claim, however, is first establishing the Veteran has the claimed disability. Establishing a current disability requires evidence of the disability at the time of or during the pendency of the claim, regardless of whether it since has resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability there necessarily can be no valid claim because, for all intents and purposes, there is no current disability to in turn relate or attribute to the Veteran's military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the purposes of applying the laws administered by VA, impaired hearing will be considered a ratable 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 these frequencies 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. Here, the Veteran as mentioned already has been granted service connection for right ear hearing loss and tinnitus due to conceded noise exposure during his service, i.e., owing to auditory trauma, and since the hearing loss in his right ear is to an extent or at a greater rate than anticipated for his age. However, entitlement to service connection for left ear hearing loss conversely has continued to be denied because objective testing including following the Board's remands of this claim, has shown comparatively normal hearing in this other ear, so no current disability. After reviewing the relevant evidence, the Board agrees and concludes the Veteran does not have ratable hearing loss in his left ear for VA compensation purposes according to § 3.385 and has not at any time during the pendency of this claim. On the authorized audiological evaluation in September 2021, pure tone thresholds for the Veteran's left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Avg LEFT 20 20 25 30 35 27.5 Speech audiometry revealed speech recognition ability of 94 percent in this ear. The threshold for normal hearing is from 0 to 20 decibels, and higher thresholds indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, the Veteran has some hearing loss in his left ear, particularly in the 2,000, 3,000, and 4,000 Hertz frequencies. That notwithstanding, as alluded, the results of that evaluation do not show the Veteran has sufficient hearing loss in his left ear to in turn be considered a ratable disability for VA compensation purposes again, meaning sufficient hearing loss in this ear to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. The Veteran filed this claim in July 2017. The only other audiological examination on record during the pendency of this claim was completed at a Sam's Club Hearing Aid Center, also in July 2017. But, notably, that report did not include the Maryland CNC speech discrimination test, as 38 C.F.R. § 4.85(a) requires, even though it nonetheless suggested a possible worsening of the hearing loss in the Veteran's left ear. As such, while that test was sufficient to warrant the September 2021 VA hearing evaluation on remand, it cannot be used to establish the Veteran has ratable hearing loss in this ear. In this circumstance, where the Veteran has not satisfied this threshold preliminary pleading-and-proof requirement of first establishing that he has this claimed disability, no discussion of the remaining elements for service connection is necessary, including attribution of the claimed condition to any injuries in service. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in the denial of service connection). In denying this claim, the Board finds that the benefit-of-the-doubt doctrine is inapplicable since there is not the required relative balance of evidence for versus against this claim. Instead, the preponderance of the evidence is unfavorable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.