Citation Nr: 21014234 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-59 385 DATE: March 11, 2021 ORDER Entitlement to service connection for left ear hearing loss disability is granted. Entitlement to service connection for right ear hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss had its onset in service. 2. At no time during the pendency of the claim does the Veteran have a current diagnosis of right ear hearing loss disability for VA purposes and the record does not contain a recent diagnosis of disability prior to the filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss disability have been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1981 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection The Veteran seeks service connection for bilateral hearing loss. He was previously granted service connection for tinnitus following a May 2017 VA audiological examination. For the reasons set forth below, the Board grants service connection for left ear hearing loss and denies service connection for right ear hearing loss. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (a). Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. § 3.309 (a). 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. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). If the record shows (a) acoustic trauma due to significant noise exposure in active service and audiometric test results reflect an upward shift in tested thresholds while in such service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. 1. Entitlement to service connection for left ear hearing loss. The Board finds that the evidence supports granting the Veteran’s claims of service connection for left ear hearing loss. At his August 2020 hearing, the Veteran testified that his hearing loss and tinnitus began in service while working as an artillery officer. The Veteran further reported that his hearing loss and tinnitus have been recurrent since that time. The Veteran further testified that his post-service occupation as a computer coder did not expose him to loud noise. In May 2017, the Veteran was afforded a VA audiological examination. The VA examiner opined that it was less likely than not that the Veteran’s current hearing loss was the result of or caused by military noise exposure. Even though noise exposure was conceded due to the Veteran’s MOS, the examiner’s rationale was that “the Veteran did not experience a significant decrease in hearing during service. In the absence of evidence of a decrease in hearing, it cannot be found that the Veteran’s hearing loss was caused by military noise exposure. “ The Board notes that the Veteran’s service treatment records show that, at his pre-enlistment physical examination in September 1980, his pure tone thresholds, in decibels, were as follows: Hertz Ear 500 1000 2000 3000 4000 Right 15 10 10 0 0 Left 15 10 10 5 0 At a mid-service physical examination in June 1983, the Veteran’s pure tone thresholds, in decibels, were as follows: Hertz Ear 500 1000 2000 3000 4000 Right 25 0 5 0 0 Left 30 15 20 5 5 At the Veteran’s separation physical examination in July 1985, prior to his separation from service in August 1985, his pure tone thresholds, in decibels, were as follows: Hertz Ear 500 1000 2000 3000 4000 Right 15 10 15 0 0 Left 15 15 15 5 10 In May 2017, the Veteran was afforded a VA audiological examination. His pure tone thresholds, in decibels, were as follows: Hertz Ear 500 1000 2000 3000 4000 Right 30 25 35 25 25 Left 40 35 35 25 20 In March 2019, the Veteran underwent a private audiological examination. His pure tone thresholds, in decibels, were as follows: Hertz Ear 500 1000 2000 3000 4000 Right 25 20 30 15 15 Left 35 30 35 20 20 All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As to a current hearing loss disability, the Veteran’s March 2017 VA audiological examination showed auditory thresholds in the Veteran’s left ear in excess of 26 decibels at 500, 100, and 2000 Hertz. 38 C.F. R. § 3.385. The May 2017 VA audiological examiner diagnosed the Veteran with left ear hearing loss for VA purposes and the Agency of Original Jurisdiction (AOJ) acknowledged the diagnosis in the June 2017 rating decision. As to an in-service injury, a comparison of reference audiograms generated at the Veteran’s September 1980 induction and July 1985 separation examinations reveals a negative shift in hearing acuity. In addition, the June 1983 in-service examination shows a negative shift at the time the Veteran was exposed to artillery fire. Thus, the Board finds that the in-service element is satisfied. See Hensley, supra. As to a nexus between the Veteran’s service and his current hearing loss and tinnitus, he credibly reported that he first noticed hearing problems during service. The Board also notes that the May 2017 VA examiner found it at least as likely as not that the Veteran’s tinnitus was caused by military noise exposure. The examiner stated that the Veteran’s MOS of field artillery carried a high probability of hazardous noise exposure. Additionally, in March 2019, a private audiologist opined that it is more likely than not that the Veteran’s current hearing loss and tinnitus are related to in-service exposure. The Veteran is competent to report the onset and continuation of his hearing loss symptoms. Moreover, the Board finds that the Veteran’s reports of noise exposure during his period of service, and hearing problems since service, are credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Resolving any doubt in the Veteran’s favor, the Veteran has left ear hearing loss that is related to service. See 38 U.S.C. 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for left ear hearing loss is warranted. The claim is granted. 2. Entitlement to service connection for right ear hearing loss Pertinent to all claims for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims has found that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Both the March 2019 private and the May 2017 VA audiological examinations revealed that the Veteran does not have a current diagnosis of hearing loss in his right ear for VA compensation purposes. He did not have a right ear auditory threshold of 40 decibels or greater, or auditory thresholds of 26 decibels or greater in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz. He also scored 100 in the speech recognition test, rather than the required 94 or lower. 38. C.F.R § 3.385. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has right ear hearing loss, the audiometric evidence reflects that the Veteran does not have a right ear hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current right ear disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has duly considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran’s claim for right ear hearing loss. As such, that doctrine is not applicable to this issue, and his claim must be denied. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 54. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals J. Morgan, Attorney for the Board Department of Veterans Affairs 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.