Citation Nr: 21022784 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-24 783A DATE: April 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1999 to September 2007. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matter for further development in February 2018. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, 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. The Board notes that the agency of original jurisdiction (AOJ) has conceded in-service acoustic trauma. Thus, the remaining question is if there is a current disability and if that disability is due to an in-service incident. A July 2010 VA audiology examination revealed that the Veteran’s pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 15 15 15 15 LEFT 10 10 15 20 20 Speech audiometry, using the Maryland CNC test, revealed speech recognition ability of 100 percent in the left ear and 96 percent in the right ear. The Veteran underwent a private audiology examination in June 2014, which revealed that his pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 10 10 10 5 LEFT 10 5 20 25 25 Speech audiometry testing was not conducted. A June 2019 VA audiology examination revealed that the Veteran’s pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 5 5 10 -5 LEFT 10 5 5 10 10 Speech audiometry, using the Maryland CNC test, revealed bilateral speech recognition ability of 100 percent. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran has had a bilateral hearing loss disability for VA purposes during the appellate period. The findings from the VA examinations and June 2014 private audiology report do not demonstrate bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, in order to be considered for service connection, a claimant must first have a disability, and in the case of hearing loss, the disability must meet a certain threshold that has not been shown. In the absence of contradictory evidence that the Veteran does have bilateral hearing loss for VA purposes, service connection is not warranted. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178–80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board notes that the Veteran is competent to report current problems with decreased auditory acuity. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994). However, the presence of a hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis; rather, such a finding requires professionally administered test results satisfying the criteria set out at 38 C.F.R. § 3.385. In the absence of such evidence, service connection for bilateral hearing loss must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.