Citation Nr: 21022894 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-56 446 DATE: April 19, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing acuity does not meet the regulatory criteria for impaired hearing. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1977 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in September 2020, the Veteran filed a VA Form 10182 appealing the issue of an increased evaluation for hypertension and requesting a hearing before a Veterans Law Judge. As that issue is currently pending in the modernized appeals system, it will not be addressed in this legacy decision, but instead by separate correspondence. In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In March 2020 and November 2020, the Board remanded the matter for further development. Specifically, in the November 2020 remand, the Board instructed the RO to obtain a VA audiological examination and etiology opinion if the examination revealed hearing loss pursuant to 38 C.F.R. § 3.385. The Board also instructed the RO to obtain updated VA and private treatment records. Pursuant to the November 2020 Board remand, the Veteran underwent a VA audiological examination in January 2021. Based on the results of this examination, the RO granted service connection for right ear hearing loss and tinnitus in a February 2021 rating decision and denied service connection for left ear hearing loss in a February 2021 Supplemental Statement of the Case. As the RO granted service connection for the right ear, the only issue pending before the Board is service connection for the left ear. Moreover, as the Veteran was afforded an examination and updated VA treatment records were secured, there has been substantial compliance with the Board’s remand directives. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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 (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  With respect to the first element of service connection, a present disability, the VA’s regulations provide three ways for meeting the definition of impaired hearing: (1) when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The results of the January 2021 audiological examination for the left ear are displayed in the table below: January 2021  HERTZ      SDS    500 1000  2000  3000  4000  Avg  CNC  LEFT  25 30  25 25 30  27.50 94%  The results of the January 2021 audiological examination for the left ear do not meet the VA’s definition of impaired hearing provided in 38 C.F.R. § 3.385. In this regard, the Board notes that none of the thresholds are 40 decibels or greater; there are not three auditory thresholds of at least 26 decibels or greater; and the speech discrimination score is not less than 94 percent. Even though the January 2021 examination report indicates a diagnosis of sensorineural hearing loss in the left ear, 38 C.F.R. § 3.385 provides that “[f]or the purposes of applying the laws administered by VA,” impaired hearing will be considered a disability only when it meets one of the requirements set forth in the regulation. The January 2021 audiological results do not meet any of the regulatory criteria for impaired hearing. The results of the December 2016 audiological examination for the left ear are displayed in the table below: December 2016  HERTZ      SDS    500 1000  2000  3000  4000  Avg  CNC  LEFT  20 15 25 20 20 20 94%  The results of the December 2016 audiological examination for the left ear do not meet the VA’s definition of impaired hearing provided in 38 C.F.R. § 3.385. In this regard, the Board notes that none of the thresholds are 40 decibels or greater; there are not three auditory thresholds of at least 26 decibels or greater; and the speech discrimination score is not less than 94 percent. The Veteran testified that he wears hearing aids in both ears and his hearing has progressively worsened. See Hearing Transcript at 14-15. The Board notes that the evidence supports both of the Veteran’s assertions, and he is competent to report hearing loss. However, VA regulations provide particular criteria for determining at which point impaired hearing becomes a disability based on mechanical application of measured auditory thresholds in various frequencies, and the Veteran is not competent to say he meets certain thresholds. Unfortunately, the audiological examination results of record for the left ear do not meet VA’s criteria for impaired hearing, and the record does not contain any other audiological findings for the left ear. Thus, as the only audiology results of record for the left ear do not meet the VA’s regulatory definition of impaired hearing, the first element of service connection, a present disability, cannot be established. Thus, service connection for left ear hearing loss must be denied on this basis alone. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.