Citation Nr: 21076857 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-38 051 DATE: December 28, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran meets the regulatory definition of hearing impairment in either ear. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to September 20, 1996, with an additional period of dishonorable service from September 21, 1996 to January 5, 1998. This matter is on appeal from an April 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in November 2019 when it was remanded for further development. The November 2019 decision also remanded the matters of entitlement to service connection for a disorder of the breast, a back disability, and a right knee disability. An April 2021 rating decision awarded service connection for these disabilities. Therefore, as the awards of service connection represent full resolution of the benefits sought on appeal, those matters are no longer before the Board and will not be further addressed. Bilateral Hearing Loss The Veteran contends that she is entitled to service connection for bilateral hearing loss. Service connection will be granted if it is shown that the Veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, the Veteran must show: (1) a current disability, (2) a disease, injury, or event in service, and (3) a causal link (i.e., nexus) between the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss, as an organic disease of the nervous system, is subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease enumerated in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). For the purposes of applying the laws administered by VA, impaired hearing is considered 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. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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). In this case, the Veteran was provided with an audiometry test in April 2012 which showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 15 LEFT 30 20 15 10 10 For the Maryland CNC Test, the Veteran scored 94 percent in both ears. The examiner marked these results as valid for rating purposes. However, these audiometric results do not reflect hearing impairment as defined in 38 C.F.R. § 3.385 as there is no auditory threshold that is 40 decibels or greater; at least three of the frequencies are not 26 decibels or greater; and speech recognition scores are not less than 94 percent. August 2018 VA treatment records note that the Veteran was negative for hearing difficulty. November 2018 medical records note that the Veteran reported muffled hearing and stated that she has had to ask friends and coworkers to repeat themselves because she could not hear them. December 2018 private treatment records reflect that the Veteran was provided with audiometric testing. These results are depicted in visual format as a chart but are readily legible for interpretation. The Board notes that some frequencies are noted as being between 20 and 30 decibels and, as noted above, one criterion for 3.385 contemplates hearing loss where at least three of the frequencies are 26 decibels or greater. To ensure that the benefit of the doubt standard is applied in this case, the Board will interpret such results as being 26 decibels, as that is the most favorable to the Veteran. Thus, the results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 26* 15 20 26* LEFT 35 15 15 26* 26* The clinician noted that these results suggest a mild low frequency sensorineural hearing loss bilaterally. However, these results, even when interpreted in a manner most favorable to the Veteran, do not rise to the level of hearing impairment as defined by law in 38 C.F.R. § 3.385 as there is no auditory threshold in either ear that is 40 decibels or greater and only two, not three, of the frequencies in each ear are 26 decibels or greater. Speech discrimination test results were 100 percent. It is unclear from the results whether speech discrimination testing was done using the Maryland CNC word list; however, even if it was done using this list, the results do not meet the § 3.385 criteria for hearing loss in either ear. During the June 2019 hearing, the Veteran reported that she experiences moderate hearing loss. She also discussed in-service exposure to hazardous noise from ammunition training. In March 2021, the Veteran was provided with an additional VA examination in which the clinician noted the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 15 15 LEFT 10 10 15 10 15 For the Maryland CNC Test, the Veteran scored 100 percent in each ear. The examiner marked these results as valid for rating purposes and noted that the use of a speech discrimination score is appropriate for this Veteran. These audiometric results do not reflect hearing loss as defined by law in 38 C.F.R. § 3.385. There is no other competent evidence in the Veteran's claims file reflecting hearing loss in either ear. The record does not reflect that the Veteran has met the regulatory definition of hearing impairment at any point during the appeal period, as the auditory thresholds and speech recognition scores have not met these criteria. Until such findings show hearing loss that meets the criteria for a disability under 38 C.F.R. § 3.385, there can be no entitlement to service connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich, 104 F.3d at 1332. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had a hearing loss disability at any point during the appeal period. Therefore, the Board cannot grant the claim under any theory of entitlement. The Board acknowledges the competent and credible reports by the Veteran that she experiences a degree of hearing loss which results in functional impairment, such as in social settings. See, e.g., Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability"). However, as explained above, hearing impairment is defined by law and regulation in 38 C.F.R. § 3.385, which requires objective measurements assessed by audiometric testing. The Board does not question the Veteran's sincerity in her belief that service connection is warranted for bilateral hearing loss. However, without evidence of a current bilateral hearing loss disability as defined by VA regulations, a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). Consequently, the Veteran's claim for entitlement to service connection for bilateral hearing loss is denied. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.