Citation Nr: 21074163 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-23 862 DATE: December 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran does not have right ear hearing loss within the statutory definition of that disability. CONCLUSION OF LAW he criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to September 1989. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of a June 2021 remand which directed the Regional Office (RO) to determine if the Veteran wished to have a DRO hearing. Following an August 2021 DRO hearing and an October 2021 VA examination, the Veteran was granted service connection for left ear hearing loss, which was previously remanded by the Board. As service connection has been granted for the Veteran's left ear, his claim has been granted in full, and the Board will only address right ear hearing loss below. Service Connection In cases where a hearing loss disability is claimed, 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 above 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. VA policy has changed with regard to the conversion of in-service audiograms. Formerly, the results of audiometric testing (i.e., puretone thresholds at various frequencies) during active service dated after October 31, 1967 were assumed to have been provided in units of measurement established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Audiometric data prior to October 31, 1967 was assumed to have been recorded in American Standards Association (ASA) units, and thus had to be converted to ISO-ANSI units to enable data comparison and to bring them in line with VA regulation pertaining to hearing loss, which is based on ISO-ANSI units. However, VA policy now is to consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. The conversion from ASA to ISO-ANSI units is accomplished by adding 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 decibels at 4000 Hz. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. 1. Entitlement to service connection for right ear hearing loss The Veteran asserts that his right ear hearing loss was caused by hazardous noise exposure during active-duty service. He specifically attests to noise exposure during his assignment to a Tank Battalion and the 2/15th Infantry Battalion. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309, 3.385. In the instant case, the Board finds that service connection must be denied because the Veteran does not meet the statutory criteria for a diagnosis of hearing loss in his right ear. As an initial matter, it has been conceded that the Veteran was exposed to acoustic trauma while in service. Additionally, his in-service audiograms demonstrate a noticeable amount of tonal threshold shift between his January 1979 enlistment examination and October 1988 report of medical history. However, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to hearing loss. Of note, the Veteran's October 1988 examination, near the time of his separation, and report of medical history do not reveal any hearing loss for VA purposes. Next, the medical records do not contain any evidence of hearing loss until approximately 2016, 27 years after the Veteran left service. The Veteran has not specifically stated that his hearing loss has been experienced since service. Moreover, there is no medical evidence which indicates treatment or complaints of right ear hearing loss in the period between the Veteran's separation from service and his 2016 claim for service connection for hearing loss. Accordingly, service connection for right ear hearing loss is not warranted based on continuity of either the medical evidence or the Veteran's statements. Next, although the evidence does not reflect that the Veteran's symptoms were continuous since service, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. However, while the competent evidence establishes a relationship between active duty and the Veteran's current right ear hearing loss, his hearing loss does not meet the criteria to qualify as a disability for VA purposes. In this regard, the Board notes the opinion of the October 2021 VA examiner. Upon examination, the Veteran was not found to have an auditory threshold of 40 decibels or greater at the 500, 1000, 2000, 3000, or 4000 hertz frequencies in his right ear. In fact, all of the thresholds at these frequencies were less than 26 decibels. And his Maryland CNC test result for his right ear showed a speech discrimination score of 96 percent. Thus, while the examiner noted that the Veteran had sensorineural hearing loss in both ears and opined that the Veteran's hearing loss in each ear was due to military service, she did not note any difference in puretone frequency scores or speech discrimination scores, which would constitute a positive nexus opinion. To date, the Veteran has not submitted any other hearing test records which would establish right ear hearing loss in line with the requirements of 38 C.F.R. § 3.385. Because the Veteran's right ear hearing loss does not meet the criteria for a diagnosis of right ear hearing loss for VA purposes at this time, service connection for right ear hearing loss is unwarranted at this time. This decision does not preclude the Veteran from obtaining service connection for right ear hearing loss in the future, presuming that his hearing loss worsens to the point of meeting the statutory criteria for that disability. However, under the present statutory guidelines, the Board cannot grant the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The appeal is denied. 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. ZAHEER MASKATIA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor