Citation Nr: 21023816 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-04 902 DATE: April 21, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran has right ear hearing loss as defined by VA regulation during or contemporary to the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1994 to January 1999 and from May 2006 to May 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2013 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In March 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In May 2018, the Board remanded the claim to the Agency of Original Jurisdiction for additional action. An April 2020 rating decision established service connection for a left shoulder disability and left ear hearing loss. Therefore, the claims for service connection for a left shoulder disability and left ear hearing loss, previously the subject of the appeal, have been resolved in the Veteran’s favor, and are no longer on appeal. 1. Entitlement to service connection for right ear hearing loss Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that he is entitled to service connection for right ear hearing loss. The Board finds that the evidence of record does not show that any right ear hearing loss does not meet the criteria for be considered a disability for VA purposes and the evidence does not show a functional limitation constituting a disability. Therefore, as the preponderance of evidence is against a finding that the Veteran has a current, right ear hearing loss disability or has had the claimed disability contemporary to the claims period, the claim for service connection must be denied. Organic diseases of the nervous system are among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for organic diseases of the nervous system may be established based on a continuity of symptomatology. Service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system, if manifest to a compensable degree within one year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that the preponderance of the evidence of record is against a finding that the Veteran has right ear hearing loss disability as defined by VA regulation. In an April 2007 outpatient consultation, the Veteran complained of left ear hearing loss stemming from a ruptured eardrum in service. Audiometric testing performed during that visit found normal hearing in the right ear. During December 2013 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: December 2013 HERTZ 500 1000 2000 3000 4000 Avg (1000-4000) CNC RIGHT 5 5 10 5 10 8 98 LEFT 20 15 15 15 20 16 98 The December 2013 VA examiner opined that the Veteran did not have a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for the right ear. The Veteran was found to have normal right ear hearing. A March 2015 letter from a private audiologist states that hearing testing found hearing within normal limits in the right ear with a noise notch at 6000 Hertz and borderline normal hearing through 4000 Hertz. The examiner stated that the Veteran had good word discrimination. Otoscopy, tympanometry, and acoustic reflex thresholds were all normal in the right ear, indicating normal middle ear function. During VA examination in May 2019, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: May 2019 HERTZ 500 1000 2000 3000 4000 Avg (1000-4000) CNC RIGHT 5 5 5 5 10 6 100 LEFT 35 40 30 30 30 33 96 The May 2019 VA examiner opined that the Veteran did not have a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for the right ear. The Veteran was found to have normal right ear hearing. The Board appreciates that the Veteran contends that he has right ear hearing loss. However, the Board notes that none of the evidence of record shows pure tone thresholds or speech recognition scores that meet the numerical standards enumerated by 38 C.F.R. § 3.385 for any diminished hearing to be considered a hearing loss disability for VA compensation purposes in the right ear. Therefore, the Veteran does not have a right ear hearing loss disability for VA benefits purposes. Without a diagnosis of a current hearing loss disability that meets the standards of 38 C.F.R. § 3.385, service connection cannot be established for a right ear hearing loss disability. Congress has 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 (1992). The level of right ear hearing loss shown by the Veteran does not constitute a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to report difficulty hearing. However, he is not competent to state that the pure tone thresholds or speech recognition scores rise to levels sufficient to constitute a disability for VA purposes as defined by regulation. That takes diagnostic testing. Accordingly, the Board has placed greater probative value on the contemporaneous medical evidence that does not support a finding of a right ear hearing loss disability for VA purposes during or contemporary to the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current right ear hearing loss disability for VA purposes. Therefore, the claim for service connection for right ear hearing loss disability is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.