Citation Nr: 21010121 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-17 673 DATE: February 24, 2021 ORDER Service connection for hearing loss of the right ear is denied. FINDING OF FACT A hearing loss disability of the right ear for VA purposes has not been manifested at any time during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for hearing loss of the right ear have not been met. 38 U.S.C. § § § 1101, 1110, 1112, 5107; 38 C.F.R. § § § 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for tinnitus, hearing loss of the left ear, and service connection for psychiatric disorder were originally on appeal as well. However, the Board granted the service connection claim for tinnitus in October 2019 and in compliance with this order, the RO issued a rating decision in September 2020, granting a 10 percent rating for tinnitus. In that same rating decision, the RO also granted service connection for hearing loss of the left ear and service connection for depressive disorder. The grant of service connection for these claims, represents a full grant of benefits. Accordingly, these issues are no longer before the Board. The only remaining issue on appeal is the service connection claim for hearing loss of the right ear. The Veteran testified before the undersigned Veterans Law Judge at a June 2019 Travel Board hearing. A transcript of that hearing has been associated with the file. The Board remanded in October 2019, for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. The Veteran served on active duty in the United States Army from June 1983 to June 2003. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, which are listed in 38 C.F.R. § § 3.309(a), including organic diseases of the nervous system (to include sensorineural hearing loss) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § § § 1112, 1113, 1137; 38 C.F.R. § § § 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). A review of the Veteran’s service treatment records does not reflect audiometric testing showing a right ear hearing loss disability for VA purposes. See 38 C.F.R. § § 3.385. The Veteran was afforded a VA audiological examination in November 2013, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 5 5 5 10 15 9 Maryland CNC speech discrimination testing showed recognition of 100 percent in the right ear. The examiner indicated that the Veteran had normal hearing. The examiner opined that the Veteran’s right hearing loss is not related to service, stating that the induction examination, retirement examination, and the examination performed this day all show normal hearing. The Veteran was afforded a VA audiological examination in September 2020, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 15 20 25 20 30 23.75 Maryland CNC speech discrimination testing showed recognition of 98 percent in the right ear. The examiner indicated that the Veteran had sensorineural hearing loss, in the frequency range of 500 to 4000Hz and in the frequency range of 6000Hz or higher. Despite there not being a disability for VA purposes, the examiner provided an opinion. The examiner opined that it is at least likely as not that the Veteran’s hearing loss is related to his in-service hazardous noise exposure. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran’s claim of service connection for hearing loss of the right ear. As stated in the October 2019 remand, the Board has conceded in-service exposure to hazardous noise. Also, as referenced above, there is a positive opinion of record. As such the question is whether the Veteran has a current hearing loss disability of the right ear. The Board appreciates the Veteran’s contentions and statements related to his hearing loss of the right ear. Although the Veteran was exposed hazardous noise in service and there is a positive etiology opinion of record, there is no evidence that the Veteran has been diagnosed with a hearing loss disability of the right ear by VA standards at any point during the timeframe on appeal. There is no audiogram of record to indicate hearing loss to constitute a hearing loss disability for VA benefits purposes. In other words, the clinically valid audiological examinations during the timeframe on appeal did not reveal auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores of less than 94 percent in the right ear. Likewise, no single examination shows at least three auditory thresholds of 26 decibels or greater during the time frame on appeal. With respect to the Veteran’s contention that he currently has a hearing loss disability of the right ear, a layperson is competent to attest to the onset and continuity of symptomatology. As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § § 3.385. Additionally, the VA examinations far outweigh his contentions as they were performed by VA audiologists, who are trained medical professionals. Absent competent and reliable evidence of a hearing loss disability the Board concludes that the claim of entitlement to service connection for a hearing loss disability of the right ear must be denied. The preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not applicable in the instant appeal. In closing, the Board recognizes the Veteran’s active service. The decision contained herein certainly does not preclude the Veteran from reapplying for service connection for hearing loss of the right ear, should he find that this disability presents itself. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.