Citation Nr: 21022323 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-57 716 DATE: April 15, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran has not been diagnosed with right ear hearing loss for VA purposes at any point during the appeal period. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1985 to October 1986, from May 1, 1992 to May 9, 1992, and from October 2004 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing. The Veterans Law Judge (VLJ) that conducted the hearing is no longer employed by the Board. The Veteran was informed of this fact in a November 2020 letter, providing him the opportunity for another Board hearing. The Veteran did not respond. As such, there is no outstanding hearing request and the Board will consider this claim based on the evidence of record. The Board remanded this claim in February 2020 to the agency of original jurisdiction (AOJ) for further development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).   The appeal previously included claims of entitlement to service connection for lumbosacral strain (claimed as back injury) and left ear hearing loss. The RO granted the claims in a September 2020 rating decision. As this award represented a full grant of the benefits sought on appeal, the claims are no longer before the Board. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran was initially represented by a service organization. However, the Veteran revoked this authority in writing in April 2019. See the Veteran’s April 2019 statement. Thus, the Veteran is currently proceeding with his appeal pro se. Entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is related to his military service. For the reasons that follow, the Board finds that the Veteran’s service connection claim must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to include high frequency sensorineural hearing loss an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of 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 (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. Notably however, “section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.” Hensley v. Brown, 5 Vet. App. 155, 159 (1993). “When audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Id. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, a current diagnosis of right ear hearing loss is not of record. In this regard, the Veteran was afforded a VA audiological examination in September 2020. The examiner documented Maryland CNC speech discrimination scores of 96 percent in right ear. The following pure tone thresholds, in decibels, were documented: Hertz 500 1000 2000 3000 4000 Right ear 10 10 05 20 30 On examination, the Veteran was not shown to have a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Board notes that while the examiner diagnosed the Veteran with bilateral sensorineural hearing loss, the objective findings for speech discrimination and the auditory thresholds of the right ear do not meet the impaired hearing criteria for VA disability purposes. Id. A VA hearing loss diagnosis is based on documented pure tone thresholds in the frequency range of 500-4000 Hz. Id. The examiner’s diagnosis was based on documented pure tone thresholds in the frequency range of 6000 Hz and higher. Thus, the Board finds that the present disability element for service connection for right ear hearing loss has not been established. The Board also observes that the Veteran’s post-service treatment records do not show a current right ear hearing loss disability for VA purposes. Specifically, an April 2007 audiologic consultation noted that the Veteran’s hearing is within normal limits, with mild sensorineural hearing loss at 6000 Hz. His documented Maryland CNC speech discrimination score was 96 percent in the right ear. As noted, pursuant to the VA regulatory requirements, for hearing loss to be considered a disability the auditory threshold must be measured at 500-4000 Hz frequencies, and the speech recognition scores must be less than 94 percent. Further, a February 2019 private audiological examination shows that the Veteran’s auditory threshold measured at 500-4000 Hz does not meet the VA regulatory criteria. His Maryland CNC speech discrimination score for his right ear was 100 percent. Accordingly, in the absence of a current right ear disability, the Board finds that service connection cannot be established. 38 C.F.R. § 3.385; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board acknowledges that the in-service noise exposure has been conceded. It is also acknowledged that a positive nexus VA opinion is of record. See September 2020 VA examination. Nonetheless, as the Veteran does not have right ear hearing loss for VA purposes, service connection on a direct basis must be denied. Additionally, it follows that consideration of service connection on a presumptive basis for chronic diseases is not warranted. The Board also acknowledges the Veteran claims asserting that he has right ear hearing loss (for VA purposes). See November 2019 Board hearing transcript. However, while the Veteran is competent to report hearing difficulties, he is not competent to diagnose hearing loss. Such an opinion requires specialized knowledge of audiograms and an ability to interpret all pertinent responses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Board finds the Veteran’s contemporaneous medical records and September 2020 VA opinion more probative to address his claim. In sum, as the Veteran does not have a current disability of right ear hearing loss for VA purposes, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert, supra. Thus, the appeal is denied. The Veteran is free to refile his claim when right ear hearing loss disability for VA purposes is present. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, Associate 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.