Citation Nr: 21023115 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-01 732 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence of record does not establish that the Veteran has a current diagnosis of bilateral hearing loss in accordance with VA standards. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 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 from March 1993 to March 1997 and October 2001 to December 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in April 2019. The transcript is of record. In February 2020, the Board remanded, in part, the issue currently on appeal for additional development. Claims for service connection for allergies (clarified to include skin disability and rhinitis) and pericarditis were developed for appellate consideration in conjunction with the claim for entitlement to service connection for bilateral hearing loss currently before the Board. During the pendency of this appeal, a November 2020 rating decision granted entitlement to service connection for allergic rhinitis (claimed as allergies), chronic sinusitis (claimed as allergies), and pericarditis. The grants of service connection for allergic rhinitis (claimed as allergies), chronic sinusitis (claimed as allergies), and pericarditis are full grants of the benefits sought. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the service connection issues for “allergies” and pericarditis are no longer on appeal. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the November 2020 supplemental statement of the case. The Board has reviewed these records and observes that as related to the bilateral hearing loss service connection claim, these records are duplicative of records previously considered or are otherwise not pertinent to this specific issue on appeal. Therefore, a waiver of AOJ consideration for these records is not necessary and the Board will proceed with adjudication of the bilateral hearing loss issue. Entitlement to 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. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, such as hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system, which are listed as a “chronic disease” under 38 C.F.R. § 3.309(a). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for chronic in-service symptoms and continuous post-service symptoms apply to the claim for hearing loss. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. In this case the Veteran maintains that his bilateral hearing loss disability is related to noise exposure during active service. The Board finds that the weight of the evidence does not establish current diagnosis or objective findings of current bilateral hearing loss. During the May 2019 VA examination, the Veteran did not exhibit auditory thresholds in the either ear of at least 40 decibels in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz or greater, or had 26 decibels or greater in at least three of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz or greater, or scored less than 94 percent in speech discrimination. See May 2019 C&P Exam. The weight of the competent and credible evidence shows that the Veteran does not have bilateral hearing loss as defined by VA regulations. The Veteran also has not contended decreased hearing acuity since the May 2019 VA examination nor has the evidence of record noted a formal diagnosis of bilateral hearing loss as defined by VA regulations. The Court has held that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The competent evidence does not establish the presence of bilateral hearing loss disability for VA purposes. Accordingly, the claim of service connection for bilateral hearing loss is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.