Citation Nr: 21013933 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-21 385 DATE: March 10, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT A right ear hearing loss disability was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2019 Board decision that remanded to the Department of Veterans Affairs (VA) Regional Office (RO) after evidence that the Veteran’s hearing loss had worsened. A new VA examination was obtained in August 2020, and it was followed by a supplemental statement of the case. An August 2020 rating decision granted service connection for left ear hearing loss and awarded a 10 percent rating, effective August 10, 2020. The matter of service connection for right ear hearing loss now returns to the Board for further proceedings. It is noted that the Veteran requested a hearing in a September 2020 letter from his representative. However, a January 2021 letter from his representative withdrew the hearing request. Service Connection Service connection will be granted if the evidence demonstrates that a current 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). Where a Veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Sensorineural hearing loss and tinnitus are chronic diseases. Under VA regulations, hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. 1. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss was caused by hazardous noise exposure in service. In his September 2013 notice of disagreement, the Veteran asserted he served 26 years in the military assigned to artillery divisions, air defense units, etc. He contended he was exposed to extreme noise from the duties associated with these assignments. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for right ear hearing loss disability on both direct and presumptive bases. The reasons follow. The question for the Board in this case 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 or is caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order for service connection to be established, there needs to be competent evidence of a current disability. The Board concludes that the Veteran does not have a current diagnosis of a right ear hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b), 38 C.F.R. § 3.303(a), (d). On a VA audiological evaluation in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 35 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. Although the August 2020 VA examination found that the Veteran had sensorineural hearing loss in the 500 to 4000 Hertz range, the Board finds that the Veteran’s right ear hearing loss at a level that is not considered to be a disability for VA purposes. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Here, the Veteran’s August 2020 VA audiogram does not support that the Veteran has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 40 decibels or greater, or that a measurement of auditory thresholds for at least three of these frequencies that was 26 decibels or greater. Furthermore, the Veteran was noted to have no hearing deficit in VA treatment records from January 2016, May 2016, and January 2017. A February 2012 VA examiner found the Veteran had normal hearing. Speech audiometry at that VA examination revealed speech recognition ability of 94 percent in the right ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 35 25 Pure tone threshold testing from prior to the July 2011 claim filing also showed results that did not meet the requirements of finding a disability under 38 C.F.R. § 3.385. Pure tone thresholds from June 2011 testing, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 25 35 Pure tone thresholds from November 2010 testing, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 30 25 Further, none of the pure tone threshold testing in the record from prior to November 2010 supports a finding that the Veteran has an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at 40 decibels or greater, or that a measurement of auditory thresholds for at least three of these frequencies that was 26 decibels or greater. Accordingly, the evidence does not support a finding of a right ear hearing loss disability for VA purposes. The August 2020 VA examiner opined that it is more likely than not that the Veteran has hearing loss today due to the noises he experienced while serving. While the opinion provides a positive nexus, the fact remains that based on objective findings in the VA examinations and other audiograms in the record as detailed above, the Veteran’s hearing loss of the right ear does not meet the requirements of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Since there is no present disability, the first element of service connection is not met. The VA examiner’s positive nexus opinion has no probative value regarding whether the Veteran has a right ear hearing loss disability under VA regulations, as a hearing loss disability under VA regulations is determined by audiometric testing. Service connection is predicated on the existence of a current disability for VA purposes. At present, there is no competent evidence of record that establishes the existence of a right ear hearing loss disability under the clear requirement of 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims has specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Laypersons are sometimes competent to provide opinions regarding etiology and diagnosis. In this case, the Board finds that the specific audiological results shown on examination are more probative evidence as to whether the Veteran manifests a right ear hearing loss disability for VA purposes. While the Veteran believes he has a current diagnosis of a right ear hearing loss disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Consequently, the Board gives more probative weight to the competent medical evidence. As noted above, the Veteran has been diagnosed with right ear sensorineural hearing loss, which, as noted above, is a "chronic disease" where service connection may be warranted if it manifests to a compensable degree within one year following discharge from service. However, it must be noted that there is no competent evidence that the Veteran incurred a right ear hearing loss "disability" to a compensable degree within one year of separation from service. The fact that a veteran has an organic disease of the nervous system during or after service is not determinative unless that disease results in "disability." For hearing loss purposes, VA has defined a hearing loss "disability’ as a condition that meets the provisions of 38 C.F.R. § 3.385. Because the Veteran’s right ear hearing loss does not meet those criteria, he cannot be awarded service connection for a right ear hearing loss "disability." (Continued on the next page)   The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131. Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran does not have a right ear hearing loss disability during the pendency of the appeal, the Board finds that service connection for a right ear hearing loss disability is not warranted. T.V. Casey Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.