Citation Nr: 21007930 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-01 245 DATE: February 11, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s right ear hearing impairment met the auditory thresholds necessary to be considered a disability for VA purposes at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 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 United States Navy from May 1966 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded this matter for additional development. It has returned to the Board for further appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). 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. Entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is caused by or related to acoustic trauma during service. The Veteran is currently service connected for left ear hearing loss and his exposure to hazardous noise during service has been conceded. However, the Veteran's in-service and post-service records are negative for audiometric findings that show that the Veteran’s right ear hearing impairment met the auditory thresholds necessary to be considered a disability for VA purposes. 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, 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. VA audiological examinations performed in November 2013, April 2018 and November 2020 do not show that the Veteran has a right ear hearing loss disability for VA purposes. Private audiological examination performed in August 2010 and September 2010 do not show a right ear hearing loss disability for VA purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Given the lack of a current diagnosis of right ear hearing loss disability as defined by VA, the Board finds that entitlement to service connection for right ear hearing loss is not warranted and the Veteran's claim must be denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. This finding does not suggest that the Veteran’s hearing in his right ear is as good as it once was when he was younger. Indeed, the record suggests that the Veteran’s right ear hearing may have been damaged as a result of his service. However, the Veteran’s right ear hearing impairment is not yet severe enough to be recognized as a disability for VA purposes. The Veteran’s right ear hearing impairment remains within the range of "normal" hearing for VA purposes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.