Citation Nr: 21074897 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-08 744 DATE: December 16, 2021 ORDER Entitlement to service connection for right ear hearing loss disability is denied. FINDING OF FACT The Veteran is not currently diagnosed with a right ear hearing loss disability as defined by VA regulation. CONCLUSION OF LAW The criteria to establish service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1999 to June 2008. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the claim for bilateral hearing loss, to provide the Veteran with a VA audiological examination. Pursuant to the remand, VA examinations and medical opinions were obtained and have been associated with the claims file. The claim has now been returned to the Board for further appellate consideration. The claim originally included the issues of entitlement to service connection for a low back disability, a cervical spine disability, left wrist sprain, a left ankle disability, musculoskeletal strain, otitis media of the right ear, a right knee disability, a left knee disability, tinnitus, and a bilateral hearing loss disability. Subsequently, in September 2021 and October 2021 rating decisions, the RO granted service connection for all issues with the exception of entitlement to service connection for right ear hearing loss. As such, this is considered a full grant of the benefits sought on appeal with regard to these issues and the only issue that remains in appellate status is entitlement to service connection for right ear hearing loss. Service Connection Applicable Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Claimed sensorineural hearing loss is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for right ear hearing loss disability The Veteran asserts that he has right ear hearing loss, which he attributes to acoustic trauma sustained during active service. However, the Board will deny the claim for service connection for right ear hearing loss because the weight of the evidence does not show that he currently has this disability. For VA purposes, 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 (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the the U.S. Court of Appeals for Veterans Claims has held that "the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's exposure to hazardous noise during service is conceded. Notably, he is now service connected for tinnitus based on this hazardous noise exposure. However, after review of the medical evidence of record during the pendency of the appeal since VA received the Veteran's claim in January 2012, the Board finds that the weight of the evidence shows that the Veteran does not have a current right ear hearing loss "disability" as defined by the VA regulatory criteria at 38 C.F.R. § 3.385. The Veteran's service treatment records show no hearing complaints, treatment, or diagnoses of hearing loss in service. The veteran had normal hearing at his enlistment examination in October 1998. At a June 2005 audiogram in service, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 5 10 According to VA treatment records dated in November 2009 and May 2012, the Veteran complained of poor hearing. The examiners noted that the Veteran's pure tone thresholds were within normal limits. In July 2012, the Veteran underwent a VA audiology examination, at which time pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 15 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The diagnosis was normal hearing in the right ear. VA treatment records dated in December 2013 note the Veteran had undergone an audiogram which showed hearing within normal limits. In April 2014, a VA audiology note states that audiogram showed shifts in hearing levels since the latest examination. Pursuant to the Board's remand, the Veteran was afforded a VA audiological examination in December 2019. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 25 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The diagnosis was sensorineural hearing loss. The examiner opined that the Veteran's right ear hearing loss was at least as likely as not (50 percent probability or greater) caused by the Veteran's exposure to hazardous levels of noise in service. The Veteran was afforded a VA hearing evaluation in September 2021; however, the audiometric results were deemed invalid by the audiologist. It was noted that the Veteran's pure tone thresholds were inconsistent with organic hearing loss. The examiner also noted that the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc. that made combined use of pure tone average and speech discrimination scores inappropriate. Thus, these audiometric results are of no probative value. These audiological findings do not establish that the Veteran has right ear hearing loss disability for VA purposes because none of the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 40 decibels or greater, at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater, and the speech recognition scores using the Maryland CNC Test are not less than 94 percent. In this regard, the Board notes that the December 2019 VA audiogram showed hearing loss for VA purposes at the 2000 and 4000 Hertz frequencies, and such was recognized by the VA examiner's diagnosis of sensorineural hearing loss; however, the fact remains that the Veteran does not have a diagnosis of right ear hearing loss that meets the criteria for hearing loss disability for VA purposes. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a 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); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). (Continued on the next page) A hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that he experienced at any time, he is not competent to diagnose a hearing loss disability because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing. While hearing difficulty is perhaps shown, the 2019 audiometric results do not meet the criteria for a hearing loss disability for VA purposes. The Board therefore recognizes that the Veteran has hearing difficulty, but such does not rise to the level of a hearing loss disability for VA purposes. Because a bilateral hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, disability benefits are not warranted for bilateral hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for bilateral hearing loss and the benefit-of-the-doubt doctrine is therefore not applicable. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.