Citation Nr: 21075540 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-02 044 DATE: December 20, 2021 ORDER Entitlement to service-connection for a traumatic brain injury (TBI), claimed as a knot on the back of the head, is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of a TBI that was incurred in or due to his time in service. 2. The Veteran has not been diagnosed with bilateral hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1972 to May 1974. This matter was previously before the Board in April 2021, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2021 Board remand. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service-connection for a head disability (claimed as a knot on the back of the head) The Veteran maintains that he suffered from a head disability, which he claimed as a knot on the back of his head. More specifically, the Veteran alleged that the knot on the back of his head was due to a fall during boot camp. The Veteran's service treatment records contain a July 1, 1972 note confirming that the Veteran slipped in the shower and suffered a two inch cut as a result. He was placed on light duty for approximately three days. The service treatment records do not contain references to additional treatment or any residuals from the fall. On the Veteran's separation examination in May1974 he was deemed normal neurologically and his head, face, neck, and scalp were also found to be normal. Moreover, the Veteran's re-enlistment examination and report of medical history in October 1979 note that the Veteran is in good health and denied any head injuries. Post-service treatment records do not contain any treatment for a head injury. The Veteran's treatment records primarily deal with his kidney disorder and recent stroke and residuals from the same. Following the April 2021 remand, the Veteran was afforded a VA examination for residuals of a traumatic brain injury. At the examination, the Veteran reported that he fell in the shower and hit the back of his head during while stationed at Camp Lejeune. The Veteran denied any lacerations. The examiner noted that the Veteran suffered a stroke in 2019 which mainly affected his balance. He reported performing activities of daily living but that he does have some help with cleaning. The examiner found significant neurological decline in memory, judgement, social interaction, orientation, motor activity, visual spatial orientation, and some difficulty with activities of daily living. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there were not service treatment records that states anything beyond falling in the shower. The examiner noted the record is silent for any residuals from this condition and that the Veteran was able to successfully serve two additional years after the date of the shower incident. The examiner found that the Veteran's current neurological decline was likely due to other factors. Upon review of the evidence of record, the Board finds that the claim for service connection for a TBI must be denied. The weight of the above evidence reflects that the Veteran has not had a TBI during the pendency of the claim. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 44-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"), here the evidence does not reflect any complaint or notation of physical defect of the Veteran's brain as related to a TBI. As the Veteran has not had a TBI, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation"). The service, post-service treatment records, and the medical opinion cited above all provide evidence against this claim. 2. Entitlement to service connection for bilateral hearing loss As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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 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. See 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. 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 of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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. The service treatment records do not indicate any complaints or diagnosis of bilateral hearing loss during service, and hearing test results during service, were within normal limits for VA purposes. The Veteran was afforded a VA audiological examination in January 2011. Puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 15, 15, 25 and 30, and in the left ear were 15, 20, 25, and 305. The puretone threshold average was 21 decibels in the right ear and 23 in the left ear. Speech discrimination was 94 percent in both ears. The examiner found normal hearing in both ears for VA purposes. There is no other indication in the Veteran's subsequent treatment records of a diagnosis of bilateral hearing loss. Simply stated, while the Veteran's hearing may not be what it once was, it is still within a range of "normal" for VA purposes. While the Veteran is competent to report difficulty hearing, he is not competent to assess whether he has disabling hearing loss for VA purposes. Because the Veteran does have a currently diagnosed hearing loss disability, service connection for bilateral hearing loss must be denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.