Citation Nr: 21022176 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-03 127 DATE: April 15, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The probative evidence weighs in favor of finding that the Veteran does not have hearing loss for VA purposes in his right ear. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307 (a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1989 to September 1993. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This issue was twice before the Board in May 2019 and November 2020. In May 2019, the Board denied service connection, and the Veteran appealed the issue to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In an Order of May 2020, the Court granted the parties’ Joint Motion for Remand (JMR), vacated, and remanded the issue to the Board for development consistent with the JMR. In November 2020, the Board remanded the case for an additional medical opinion. The VA auditory examination of January 2021 is adequate for adjudication. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for right ear hearing loss is denied. The Veteran has contended that his right ear hearing loss is etiologically related to noise exposure associated with his service. Specifically, he contends that his hearing loss was due to the drills on the ship, which included the firing of big guns, like the MK 750 and MK 760s. “Numerous times, he had to go below deck to restore his hearing.” In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Sensorineural hearing loss (organic diseases of the nervous system) are considered chronic diseases. Therefore, it will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the purpose of applying the laws administered by VA, impaired hearing is considered a “disability” when the 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). STR’s and post-separation treatment records do not indicate right ear hearing loss for VA purposes. See May 2010 VA audiological examination (audiological data showed no hearing loss for VA purposes bilaterally); January 2021 VA audiological examination (audiological data showed sensorineural hearing loss in the bilateral ears, but not to the severity required to be a disability for VA purposes in the right ear). 38 C.F.R. § 3.385. Furthermore, the Board acknowledges the Veteran’s competent and credible statements that he has had to purchase “a hearing aid to help relieve some ringing in his ear” and that he has difficulty hearing people at a far distance with background noises. However, the Board highlights that: (a) the evidence fails to show that the Veteran has the necessary medical background to competently diagnose hearing loss for VA purposes in the right ear because this condition is not lay observable (it is diagnosed after objective, diagnostic testing); (b) the private and VA treatment records currently associated with the claims file lack any competent indication of hearing loss for VA purposes in the right ear; and (c) the Veteran did not submit any etiological opinions from private or VA providers indicating hearing loss for VA purposes in the right ear. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Thus, because the probative evidence weighs in favor of finding that there is no right-ear hearing loss for VA purposes, the claim for entitlement to service connection for right ear hearing loss is denied. Brammer, supra; Rabideau, supra. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.