Citation Nr: 21013257 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-31 499 DATE: March 9, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of bilateral hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 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 from November 1975 to May 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Subsequently, the Board in September 2019 remanded for another examination. While in remand status the RO granted service connection for a left foot story and related scar. As such, this matter is no longer in appellate status. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 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). In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his noise exposure in his duties as a cannoneer and field artillery. His VA Form DD 214 confirms that his military occupational specialty was as a field artillery crewman. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran underwent a VA examination in August 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 25 25 LEFT 5 10 10 20 30 His right ear average was 18 dB, and his left ear average was 18 dB. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner noted that the Veteran’s responses indicated normal hearing with the exception of a mild sensorineural hearing loss in the left ear at 4000 Hz. In a November 2013 audiology consultation, it was noted that current audiometric results were consistent with the August 2009 findings. VA afforded the Veteran another examination in October 2020. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 25 LEFT 10 15 15 25 25 His right ear average was 21 dB, and his left ear average was 20 dB. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The examiner noted that his hearing was within normal limits. Based on the above findings, the Veteran does not have a hearing loss disability for VA purposes in either ear as he does not have pure tone thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; there are not auditory thresholds for at least three of these frequencies at 26 decibels or greater; and his speech recognition scores using the Maryland CNC are not less than 94 percent. 38 C.F.R. § 3.385. The Board finds the above examinations to have probative weight as the audiologists conducted an audiological examination and reviewed the Veteran’s pertinent medical records, showing familiarly with relevant medical history, such as the Veteran’s in-service MOS and noise exposure. The Board recognizes the Veteran’s belief that he has a bilateral hearing loss disability due to his active service. In this regard, in Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient is an issue of fact. In this case, the lay evidence is insufficient to establish a diagnosis of bilateral hearing loss, as none of the factors set forth above have been satisfied. While the Veteran is competent to report observable symptoms such as decreased/difficulty hearing, he is not competent to conduct audiological testing to show a current disability. Moreover, the question of whether symptoms are representative of a diagnosis is a medical question requiring medical expertise. As such, the Veteran’s assertions cannot establish the element of current disability because they are not competent and lack weight. At no time during the appeal period has the Veteran’s hearing met the standards of 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). (CONTINUED ON THE NEXT PAGE)   In sum, the Board finds that service connection for bilateral hearing loss is not warranted as the Veteran does not have hearing loss for VA purposes. For the above reasons, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.