Citation Nr: 21015023 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-17 382 DATE: March 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a hearing loss disability by VA standards in either ear. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 to March 2009. This matter is before the Board of Veterans Appeals (Board) on appeal of a September 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2014. The hearing transcript is of record. In January 2015, February 2017, and again in March 2019 the Board remanded the case for further development by the originating agency. The RO subsequently issued a supplemental statement of the case in July 2019, which included the issue of entitlement to service connection for hearing loss and entitlement to higher ratings for service-connected right ankle and right toe fracture disabilities. The Veteran submitted a VA Form 20-0995 on August 26, 2019, electing to pursue a Supplemental Claim under the modernized system (AMA) with respect to the issues of entitlement to an initial evaluation in excess of 10 percent for right ankle sprain and an initial evaluation in excess of 10 percent for status post right 2nd toe fracture. Thus, the Veteran has properly withdrawn his legacy appeal with respect to these two issues that were previously on appeal in the legacy system. While the legacy appeal of those issues was inadvertently re-docketed at the Board, the Board does not currently have jurisdiction to address those issues. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, where post-service audiometric findings indicate that there is a hearing loss disability, and where there is a sound basis upon which to attribute the post-service findings to the in-service injury (as opposed to incurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). For the purposes of the 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. The relevant question at issue is whether the Veteran has a hearing disability at present, as defined by 38 C.F.R. § 3.385, so as to meet the criteria for service connection for defective hearing. Audiometric testing during service did not show hearing loss in either ear by VA standards. There is no competent evidence of hearing loss in either ear for VA purposes at any time during the appeals period. The Veteran was examined by VA and the diagnostic findings from the audiological examinations in May 2009 and July 2019 failed to show a hearing loss for VA compensation purposes in either ear. 38 C.F.R. § 3.385. On the May 2009 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 10 15 LEFT 20 15 15 10 10 Speech audiometry revealed speech recognition ability of 100 percent in each ear. On the July 2019 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 5 10 LEFT 15 15 10 10 10 Speech audiometry revealed speech recognition ability of 100 percent in each ear. The audiological findings on the VA examination reports do not show auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater for either ear; or speech recognition scores using the Maryland CNC Test less than 94 percent for either ear. There is no other competent evidence demonstrating a current hearing loss disability during the pendency of the appeal. Given the lack of evidence showing that the Veteran has a hearing disability in either ear at present, as that term is defined in 38 C.F.R. § 3.385, service connection for hearing loss is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.