Citation Nr: 21023352 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-17 558 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence of record is against finding that the Veteran has had bilateral hearing loss for VA purposes at any time during, or approximate to, the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A Board hearing was conducted via videoconference with the RO in Salt Lake City, Utah. A transcript of this hearing is contained within the electronic claims file. The Board previously addressed in a January 2020 decision this claim, as well as ones for entitlement to service connection for (1) tinnitus, (2) a thoracolumbar spine disability, (3) a cervical spine disability, (4) headaches, and (5) an acquired psychiatric disability. Claims (1)–(3) were remanded so that the Veteran could be provided examinations and for VA to obtain etiological opinions. Claims (4) and (5) were alleged as secondary to the cervical spine condition, so whether a medical opinion was necessary was left to the judgment of the RO. A January 2021 rating decision granted service connection for all issues except bilateral hearing loss. Thus, the Board need only discuss that issue going forward. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For VA purposes, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. For certain chronic diseases, including organic diseases of the nervous system (which include hearing loss and tinnitus), a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. If a chronic disease is noted in service but chronicity in service is not adequately supported, then there is required, under 38 C.F.R. § 3.303(b), a showing of continuity of symptomatology after discharge; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). In this case, service connection for the continuity of the chronic condition will be presumed related to service. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 264–65 (2015); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. As part of compliance with the Board’s prior remand instructions, the Veteran was afforded an audiological examination in September 2020. The report contains the following test results: Hertz (HZ) 500 1000 2000 3000 4000 Right Ear 25 25 10 25 35 Left Ear 15 20 15 25 35 Both ears received a speech discrimination score of 96 percent. As noted above, VA has very specific regulations for what qualifies as hearing loss. Because neither ear has decibels 26 or greater at any three frequencies or 40 decibels for at least one frequency, and because neither ear has a speech discrimination score below 94 percent, the Veteran does not have a current hearing disability for VA compensation purposes. See 38 C.F.R. § 3.385. Thus, because the Veteran has no current disability, the first element of service connection has not been established, and the Board need go no further with its analysis on either a direct or presumptive basis. See Romanowsky, 26 Vet. App.at 293; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit); 38 C.F.R. §§ 3.303(a)–(b), 3.307(a)(3), 3.309(a). (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.