Citation Nr: 21007221 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-05 855 DATE: February 9, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The record does not reflect a current diagnosis for right ear hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 1154, 5103, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1971 to October 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in June 2018, at which time it was remanded for development. Development was adequately performed, and the case was returned to the Board for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service Connection for Right Ear Hearing Loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they service manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran claims that his hearing loss of the right ear is related to his military service. The Veteran has reported in-service noise exposure with progressive hearing loss since separation. Additionally, it is undisputed that his military occupational specialty, which involved working with heavy artillery, exposed him to a high probability of loud noise. See BVA Decision (June 2018) (granting service connection for left ear hearing loss and conceding in-service noise exposure). Thus, the case turns on whether the Veteran has a current right ear hearing loss disability as defined in 38 C.F.R. § 3.385. 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, 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the record does not reflect that the VA criteria for a disability have been satisfied. Accordingly, service connection for hearing loss of the right ear is not warranted. The Veteran underwent VA hearing evaluations in May 2014 and October 2019. The Maryland CNC speech discrimination score for the right ear was 96 percent in May 2014 and 100 percent in October 2019. Furthermore, Puretone thresholds did not reach 40 decibels or greater in at least one frequency or 26 decibels or greater in at least three frequencies. Puretone Thresholds of the Right Ear Hertz 500 1000 2000 3000 4000 May 2014 20 25 20 25 35 October 2019 25 20 20 30 30 These audiological results are inconsistent with a finding of hearing loss as a disability for VA purposes. 38 C.F.R. § 3.385. In both evaluations, the VA examiners diagnosed the claimant with sensorineural hearing loss of the right ear (in the frequency range of 500-4000 Hz). They further concluded that the Veteran’s hearing loss does not constitute a disability under VA regulations. 38 C.F.R. § 3.385. The Board also notes that 38 C.F.R. § 3.385 has been upheld by the Court as a valid exercise of VA’s regulatory authority. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, all hearing loss claims must meet the regulatory definition of hearing loss in § 3.385 to constitute a disability for VA purposes. While the Board acknowledges the Veteran’s frustration, unfortunately, without a current disability, service connection for hearing loss cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 224 (1992) (a current diagnosis is a cornerstone of a service connection claim). As such, the claim for service connection for right ear hearing loss is denied. (CONTINUED ON NEXT PAGE) GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.