Citation Nr: 21011272 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-55 640 DATE: March 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus, is denied. FINDING OF FACT Evidence of record throughout the entire appeal period fails to demonstrate that the Veteran has a current bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to April 1980 and from October 2004 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision. In October 2019, the Veteran testified at a Board hearing at the AOJ before the undersigned Veterans Law Judge. In February 2020, the Board remanded this matter for additional development. Entitlement to service connection for bilateral hearing loss In written statements of record and during his October 2019 Board hearing, the Veteran has asserted that he has bilateral hearing loss causally related to in-service noise exposure. He has further contended that his bilateral hearing loss was aggravated by his service-connected tinnitus. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (2020). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2020). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2020). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007). After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss is not warranted. There is no factual basis in the record that bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385 was incurred during service or was manifested as a chronic disease within a year after his discharge from service in 2006. Service treatment records are negative for a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. More importantly, post-service VA audiology examination results dated in May 2016 and March 2020 do not establish that the Veteran has a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. In addition, there is no other evidence of record, including the June 2019 private audiology test results and VA audiology treatment records dated through 2020, showing that the Veteran has had sufficient bilateral ear hearing impairment during the appeal period to qualify as a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The lay statements from the Veteran are competent evidence as to observable symptomatology, including decreased hearing acuity. See Barr, 21 Vet. App. at 307. However, lay statements that the Veteran has a present bilateral hearing loss disability for VA purposes draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the nature, severity, and etiology of the Veteran’s bilateral hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The Board is cognizant that the Veteran does have conceded in-service noise exposure as well as mild impaired hearing, but it does not meet the criteria to be considered a disability for VA purposes. The criteria to award entitlement to service connection for bilateral hearing loss have simply not been established, either through medical or probative lay evidence of record. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.