Citation Nr: 21005814 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-13 372 DATE: February 2, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran has a right ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5103, 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 July 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran provided testimony via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In January 2020, the Board remanded the claim of service connection for bilateral hearing loss for further development. Subsequently, in a July 2020 rating decision, service connection was granted for left ear hearing loss from February 4, 2020. This constitutes a full grant of the claim of service connection for left ear hearing loss. Therefore, that claim is no longer on appeal before the Board. Entitlement to service connection for right ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is seeking service connection for right ear hearing loss due to acoustic trauma in service. Specifically, he reports exposure to noise from jet engine while serving as an aircraft mechanic in service. During the October 2019 Board hearing, the Veteran testified that he served aboard a carrier and was constantly exposed to noise. He also stated that he started noticing decrease in hearing acuity during service. However, the medical evidence of record fails to show a current diagnosis of the claimed right ear hearing loss disability. In March 2015, the Veteran attended a VA examination; however, his test results were “considered of poor reliability and validity.” The examiner asked that another examination be scheduled. A second VA examination was conducted in June 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 20 25 LEFT 20 25 25 25 25 Speech audiometry revealed speech recognition ability of 94 percent in the both ears, using the Maryland CNC word list. The examiner stated that the use of word recognition score was appropriate for this Veteran. The diagnosis was sensorineural hearing loss, in the frequency range of 6000 Hz or higher frequencies, in the right ear. Most recently, the Veteran was provided another VA examination in February 2020. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 20 LEFT 30 35 30 25 30 Speech audiometry revealed speech recognition ability of 100 percent in the both ears, using the Maryland CNC word list. The examiner stated that the use of word recognition score was appropriate for this Veteran. The diagnosis was sensorineural hearing loss, in the frequency range of 6000 Hz or higher frequencies, in the right ear. The foregoing evidence demonstrates that the Veteran’s right ear hearing does not meet the criteria to be a disability for VA purposes under 38 C.F.R. § 3.385. There is no other report of hearing evaluation showing right ear hearing loss disability as defined under 38 C.F.R. § 3.385 at any time during the appeal period or prior to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Lay testimony regarding the Veteran’s observable symptoms is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, the Board has no reason to question the credibility of the Veteran’s contentions regarding his hearing problems. However, the Veteran lacks the requisite medical expertise to render a medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of a hearing loss disability for VA purposes is based on an objective audiometric testing and is not simply determined based on mere personal observation by a lay person. See id.; 38 C.F.R. § 3.385. However, audiometric and speech discrimination ability testing conducted in June 2015 and February 2020 shows that the Veteran does not have a right ear hearing loss disability for VA purposes. (Continued on the next page)   Accordingly, in the absence of competent medical evidence of a right ear hearing loss disability, the criteria for establishing service connection for right ear hearing loss have not been established. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that in the absence of proof of a present disability, there can be no valid claim for service connection); 38 C.F.R. § 3.303. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.