Citation Nr: 21075704 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-40 026 DATE: December 21, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT At no time during the pendency of the claim has the Veteran had a bilateral hearing loss disability for VA purposes upon audiometric testing. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2001 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is of record. This matter was previously remanded by the Board in July 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral hearing loss disability The Veteran contends entitlement to service connection for a claimed bilateral hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 500, 1000, 2000, 3000, 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). With regard to the threshold issue of a current disability, audiometric testing results from an August 2015 examination shows normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the August 2015 audiological exam revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 20 LEFT 20 20 20 25 25 Maryland CNC speech recognition testing was 100 percent for both ears. At the Veteran's May 2021 Board hearing, the Veteran testified that he was exposed to acoustic trauma during his active service. Specifically, the Veteran described being exposed to noise such as the drone of engines, generators, and flow noises through pipes. He also testified that he believed his hearing had worsened. In accordance with the July 2021 Board remand, the Veteran had another examination for his claimed bilateral hearing loss disability in August 2021. The August 2021 audiological examination also showed normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the August 2021 audiological exam revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 20 25 LEFT 15 20 20 25 25 Maryland CNC speech recognition testing was 98 percent for the right ear and 96 percent for the left ear. In comparing the results of the audiological testing to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against a finding that the Veteran currently has a bilateral hearing loss disability as defined for VA compensation purposes. Crucially, no other competent medical evidence in the record indicates a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. Without a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Although the Board in no way calls into question the Veteran's own observation of diminished hearing acuity, the Board is constrained at this time from finding that the Veteran's bilateral hearing loss is not of such severity to qualify as a disability for VA purposes, as defined by regulation. For this reason, the Veteran's service connection claim for a bilateral hearing loss disability must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.