Citation Nr: 21072680 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-12 121 DATE: December 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran does not have current hearing loss in the right ear to an extent recognized as a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1989 to February 1993, with additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision. In August 2019, the Board continued a denial for service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), the Court remanded the matter back to the Board in November 2020 in order to obtain an adequate VA examination. The Board thereafter remanded the appeal for a VA examination, which was obtained in July 2021 in compliance with the JMPR. The claim for entitlement to service connection for left ear hearing loss was subsequently granted in an August 2021 rating decision, resolving that matter in full. Entitlement to service connection for right ear hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those 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, service connection for right ear hearing loss is not warranted because no current right ear hearing loss disability exists. Id. The Court has held that the current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability." Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Neither of these criteria is met in this case. The Veteran filed the instant claim for service connection for hearing loss in November 2016, and there is no evidence of a diagnosis of hearing loss for VA purposes in the evidence dated just prior to or at the time of the filing of his claim. In this regard, the Parties to the JMPR agreed that the January 2017 VA audiological examination was inadequate for rating purposes, as it did not include a controlled speech discrimination test and a puretone audiometry test in compliance with 38 C.F.R. § 4.85(a). See JMPR at 3. Accordingly, and in compliance with the JMPR, the Veteran presented for a VA audiological examination in July 2021. The examination revealed the Veteran had a right ear Maryland CNC speech recognition score of 100 percent, as well as right ear auditory thresholds of 20 decibels at 500 hertz, 10 decibels at 1000 hertz, 5 decibels at 2000 hertz, 10 decibels at 3000 hertz, and 15 decibels at 4000 hertz. These findings do not demonstrate right ear hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. Moreover, given the lack of current hearing loss, to include within the one-year period following service separation, presumptive service connection for right ear hearing loss is not available. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). To the extent the Veteran asserts that he has right ear hearing loss, although he is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability for VA purposes, because such a determination requires specific audiometric findings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board acknowledges Counsel's argument (as noted in the August 2020 Appellate Brief) in the that there may be continuing symptomatology of hearing loss based on the Veteran's reported active service combat and in-service head trauma, and changes in puretone thresholds over time; however, without a current disability just prior to or since the filing of his claim, the claim fails. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). The Board acknowledges the opinion of the July 2021 examiner that the Veteran's hearing loss was at least as likely as not related to his military service. However, in the absence of a current hearing loss disability, service connection for hearing loss cannot be established. See Brammer, supra. Should the Veteran believe that his impaired hearing has worsened and if he wishes to seek service connection for a hearing loss disability, he is encouraged to file a supplemental claim on the appropriate VA-promulgated form. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.