Citation Nr: 21075268 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-51 041 DATE: December 20, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability that meets the VA criteria for a disability at any time during, or approximate to, the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2008 to October 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Bilateral Hearing Loss 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from service separation even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307 (a)(3), 3.309(a). Because "Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," service connection cannot be granted "in the absence of proof of a present disability." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a veteran "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). "In the absence of proof of a present disability, there can be no valid claim." Brammer, supra. A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. 49 (1990). Here, the Veteran asserts that he has bilateral hearing loss caused by in-service noise exposure. A post-service VA audiological examination conducted in December 2016 recorded pure tone thresholds for his right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 10, 15, 10, 10, and 10, respectively. Puretone thresholds for his left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows were 15, 10, 10, 20, and 30, respectively. Maryland CNC Test revealed 96 percent speech recognition for each ear. During the examination, he reported the functional impairment of his hearing loss as ear pain in his left ear when hearing loud noises, such as Amtrak horn blowing. He added that he could not go to parties without wearing an earplug in his left ear. Specific to the left ear, the examiner noted mild hearing loss in higher frequencies, diagnosed sensorineural hearing loss, and opined that it was most likely due to hazardous noise exposure. However, the results of the examination do not reflect hearing impairment that meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. Accordingly, the Board finds that the Veteran does not have bilateral hearing loss for VA compensation purposes. In making this determination, the Board assigns significant weight to the December 2016 VA examination, which does not show that the Veteran has bilateral hearing loss for VA compensation purposes. Id. Further, no other medical evidence of record refutes these audiological findings. Accordingly, the evidence is against finding that the Veteran has bilateral hearing loss disability at any time during the current appeal period. To the extent that the Veteran asserts he does in fact have bilateral hearing loss, the objective clinical testing outweighs his lay opinion, as audiometric testing is required to determine whether there is hearing loss for VA purposes compared to a lay assertion on the matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board does not doubt the credibility of the Veteran, as he can attest to factual matters of which he had first-hand knowledge. However, the VA examination results are of more probative value than his lay statements. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997). 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). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a bilateral hearing loss disability is not warranted. Additionally, the Veteran asserts that the evidence shows his left ear hearing loss came close to meeting the criteria of 26 decibels hearing loss in two of the three frequencies. He also asserts that remand is warranted to afford him a new VA examination because his most recent VA examination was in December 2016, nearly five years ago. See September 2020 Informal Hearing Presentation. In this regard, the Board notes that it will not remand for a new VA examination solely based on the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the duty to assist does not require that a claim be remanded for a new VA examination solely because of the passage of time). Furthermore, the Board finds that a review of the record since the December 2016 VA examination shows that the Veteran has described no change in his hearing acuity, nor are there any complaints or reports from the Veteran while receiving medical care that note (CONTINUED ON NEXT PAGE) worsening hearing. Therefore, the Board finds that the medical evidence does not show that another VA examination is warranted due to worsening the condition at this time. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.