Citation Nr: 21074485 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-00 766 DATE: December 15, 2021 ISSUE Entitlement to service connection for a right ear hearing loss disability. ORDER Entitlement to service connection for a right ear hearing loss disability is denied. FINDING OF FACT The Veteran does not have a right ear hearing loss disability of such severity to constitute a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1984 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss in October 2015. The Veteran's claim was denied in a rating decision from July 2016. The Veteran requested reconsideration, and an additional rating decision was issued in October 2016. He then filed a timely Notice of Disagreement (NOD), which was received by VA in August 2017. He was issued a statement of the case in November 2017, and he filed a VA Form 9 in December 2017. The Veteran's claim was certified to the Board in April 2018. The Veteran then appeared before the undersigned Veterans Law Judge in a Board hearing in January 2021 to present testimony on the issue on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In May 2021, the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the Board's May 2021 remand, the RO granted the Veteran entitlement to service connection for a left ear hearing loss disability at a noncompensable disability rating, effective July 1, 2021. As the Veteran's original claim for entitlement to service connection for a bilateral hearing loss disability has only been granted for the left ear, the Board has recharacterized the issue on the title page to reflect that entitlement to service connection for a right ear hearing loss disability is still on appeal. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a right ear hearing loss disability. The Veteran has claimed that he has a right ear hearing loss disability. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303 (a). With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As indicated above, the Veteran was given a hearing before the undersigned in January 2021. During the hearing, the Veteran testified that his hearing loss symptoms began in service, as his military occupational specialty (MOS) was initially infantryman, followed by being a "Bradley Gunner." He was given regular firearms training with the "turret with the 25-millimeter main gun," and that he was not given adequate hearing protection. The Veteran is competent to report the symptoms he experiences, such as those associated with his hearing loss, as well as that which he experienced in service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's DD-214 and military personnel records confirm that his military occupational specialty (MOS) was as an infantryman. He has also received the Expert Badge for Rifles and Hand Grenades. Considering the Veteran's MOS and badges, coupled with his competent testimony, the Board finds that he has met the second criteria for entitlement to service connection, as his exposure to hazardous noise while on active duty can be conceded. 38 C.F.R. § § 3.303 (a). As noted above, the Veteran's claim was previously before the Board in May 2021. In that Decision the Board discussed a VA examination from August 2016, which found that the Veteran did not have bilateral hearing loss of the severity to constitute a disability under 38 C.F.R. § 3.385. The Veteran had testified that his hearing had worsened since that August 2016 VA examination, and as such, the Veteran's claim was remanded so that he could be afforded another VA audiological examination, and an etiological opinion could be rendered. That VA examination occurred in July 2021. The VA examiner had access to the Veteran's claims file and conducted an in-person audiological evaluation. The examiner noted the Veteran's lay statements, and his testimony, which included the confirmed in-service exposure to hazardous noise. Audiological testing was then conducted. The following table indicates the decibel loss at the pure tone threshold for the right ear. HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 35 Speech discrimination was found to be 94 percent in the right ear. The Board also notes that the report provided a positive etiological opinion for the Veteran's bilateral hearing loss, and it was from this VA examination that his claim for entitlement to service connection for left ear hearing loss was granted. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity and etiology of the Veteran's right ear hearing loss disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to an analysis of the evidence, the Board finds that the Veteran does not currently have a right ear hearing loss disability of such severity to constitute a disability for VA compensation purposes. 38 C.F.R. § 3.385. Considering the audiological measurements from the July 2021 VA audiologist, the Veteran was not found to have the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz at 40 decibels or greater, or that the auditory thresholds for at least three of those frequencies were 26 decibels or greater, or that his speech recognition scores using the Maryland CNC Test was less than 94 percent. 38 C.F.R. § 3.385. The Board further notes that these audiological findings are consistent with the prior VA examination from August 2016, which also found that he did not have right ear hearing loss for VA purposes. Thus, notwithstanding his assertion that he has a right ear hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current right ear hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Based on the above, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to service connection for a right ear hearing loss disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.