Citation Nr: 21013396 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-31 148 DATE: March 9, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REFERRED In a November 2020 statement, the Veteran raised the issue of service connection for depression secondary to service-connected tinnitus. That issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development. FINDING OF FACT The Veteran does not have right ear hearing loss that satisfies the requirements of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1965 to September 1968, and service in the Naval Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision by a Department of Veterans Affairs (VA)Agency of Original Jurisdiction (AOJ) that denied service connection for bilateral hearing loss. The Veteran testified before the undersigned Veterans Law Judge in a June 2017 Board hearing. In April 2018 and August 2020, the Board remanded the claim to the AOJ for additional development, to include most recently a VA audiological examination. The AOJ substantially complied with the Board remand directives and the case has been returned to the Board for appellate review. In an October 2020 rating decision, the AOJ granted service connection for left ear hearing loss, evaluated as 0 percent disabling. The issue of service connection for right ear hearing loss is the sole issue remaining for appellate review. Entitlement to service connection for right es ar hearing loss Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease 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). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id., at 157. For the purposes of applying the laws administered by VA, impaired hearing will be considered 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. Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 158. In-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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, 1 Vet App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s DD 214N, Report of Transfer or Discharge from Service, shows that he served in the United States Navy, and that his service specialty number was ATN-8331, with a related civilian occupation as a radio mechanic. It is reported that he had 2 years foreign and/or sea service. Service and Naval Reserve treatment records are absent for any findings referable to right ear hearing loss. In an August 2008 notice of disagreement (NOD) the Veteran reported that during service he was an electronics technician which involved working around aircraft jet engines and on the deck of an aircraft carrier where flight operations involved extreme noise exposure. He stated that ear protection was supplied but was not available at times and that was the most noise exposure that he was subjected to during his working career. Post-service VA audiological records through October 2012 show that the Veteran had normal right ear hearing loss. In a December 2015 VA treatment record, the Veteran’s spouse reported that she believed the Veteran’s hearing had diminished. The Veteran underwent a VA examination for hearing loss in October 2020. The examination report showed that the examiner had the opportunity to review the Veteran’ e-folder. It was indicated that Veteran served as an Aircraft Electronic Technician aboard the USS America and USS Kitty Hawk. The audiological examination showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT (dB) 15 15 15 20 30 The Veteran's speech discrimination score was 100 percent for the right ear. As to a diagnosis, the examiner indicated that the Veteran had right ear sensorineural hearing loss. The examiner opined that the Veteran was exposed to high levels of noise during service and the current examination indicated that the veteran had right and left ear hearing loss that is as least as likely as not caused by or the result of an event in service. In an October 2020 rating decision, the AOJ granted service connection for left ear hearing loss evaluated as 0 percent disabling, as his left ear hearing loss was linked to acoustic trauma in service. After reviewing the evidence, the Board concludes that service connection for right ear hearing loss is not warranted. The Veteran does not have a current diagnosis of right ear hearing loss for VA purposes, nor has he had one at any point during the appellate period. Indeed, the evidence shows that the Veteran had acoustic trauma exposure in service, working around aircraft jet engines and on the deck of an aircraft carrier. The Board is aware that in October 2020, a VA audiologist opined that the Veteran was exposed to acoustic trauma in service and that he has hearing loss in both ears likely due to acoustic trauma sustained in service. Service connection for left ear hearing loss has been granted by VA. However, while thresholds in the left ear have been met, the thresholds required for right ear hearing loss have not been met at any point during the appellate period, In order to qualify as a disability for service connection, hearing loss must meet objective thresholds: 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or when the 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. The audiometric results from the most recent October 2020 VA examination show that the right ear hearing levels did not meet the required criteria. The Board finds that service connection for right ear hearing loss is not warranted. The Veteran asserts that he has right ear hearing loss for which service connection is warranted, and that audiometric testing does not reflect the severity of his hearing loss and situations in which he has a hard time hearing. The Veteran is competent to report his hearing loss complaints and symptoms. However, the issue of hearing loss is medically complex, as it requires the interpretation of symptoms and application of objective criteria by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran has any medical training or training in audiometry. While he is competent to report his hearing loss complaints and symptoms, he is not competent to establish the criteria as set forth in 38 C.F.R. § 3.385. The Board is bound by that criteria. Accordingly, the Board finds that a preponderance of the evidence is against the claim, and service connection for right ear hearing loss is denied. 38 U.S.C. § 5107 (b). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.