Citation Nr: 21015653 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-05 699 DATE: March 18, 2021 ISSUE Entitlement to service connection for right ear hearing loss disability. ORDER Entitlement to service connection for right ear hearing loss disability is denied. FINDING OF FACT The Veteran does not have a right ear hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1999 to September 2004. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned during a July 2018 videoconference hearing. A copy of the transcript is of record. When this case was previously before the Board in December 2018, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  During the pendency of this appeal, service connection for bilateral tinnitus, thoracolumbar spine strain, and left ear hearing loss was granted in a September 2020 rating decision. Service connection was also granted for posttraumatic stress disorder in an October 2020 rating decision. As such, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran’s claimed right ear hearing loss did not manifest to a compensable degree within one year of separation from service. In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In response to the Board’s remand, the Veteran was afforded a VA-contracted examination in July 2020 that did not show a current right ear hearing loss disability for VA compensation purposes. That is, his Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 20 20 25 20 20 21.25 The speech recognition score was 100 percent. In the instant case, the evidence does not establish the first Hickson element, a current disability, with respect to the Veteran’s alleged right ear hearing loss. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection must fail because the most probative medical evidence does not indicate current diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board notes that the Veteran is competent to report his symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board must still evaluate the credibility and probative value of the Veteran’s statements. Moreover, while lay statements are sufficient to describe what witnesses observe, such as hearing loss, lay statements are not competent to diagnose hearing loss disability or the extent of impairment as set forth in VA regulations. See e.g., Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); Charles, 16 Vet. App. 370, 374; Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.