Citation Nr: 21024090 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-28 008 DATE: April 22, 2021 ORDER Service connection for a right ear hearing loss disability is denied. FINDING OF FACT The Veteran has not, at any time during the appeal period, had a right ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability are not met at any time during the appeal period. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to January 1987, from January 1987 to September 1992, and from January 2008 to May 2008. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a bilateral hearing loss disability. The Veteran’s notice of disagreement (NOD) was received in February 2015. The RO issued the statement of the case (SOC) in May 2016, and the Veteran’s VA Form 9, substantive appeal was received in July 2016. In November 2018 the Board remanded the case for further development and adjudicative action. In an October 2020 rating decision, the RO granted service connection for a left ear hearing loss disability. This constituted a full grant of the claim for service connection for left ear hearing loss disability, and as so, the sole issue remaining on appeal is the issue of service connection for a right ear hearing loss disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307, and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran asserts he has a right ear hearing loss disability that is the result of in-service exposure to hazardous noise. As noted above, a service connection claim requires a showing of a current disability. For a hearing loss service connection claim, that element is met when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In this case, the Veteran’s auditory thresholds were tested numerous times both before, and during, the appeal period. Audiometric testing in June 2010 revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 -5 Audiometric testing in September 2012 revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 10 0 Audiometric testing in July 2013 revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 5 5 Audiometric testing at a January 2015 VA hearing loss and tinnitus examination revealed speech discrimination of 100 percent in the right ear, and the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 0 Audiometric testing at a September 2020 VA hearing loss and tinnitus examination revealed speech discrimination of 98 percent in the right ear, and the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 20 5 In light of this evidence, the record contains no audiological tests which establish a hearing loss disability, for VA purposes, at any time during the appeal period. 38 C.F.R. § 3.385. While the Veteran has expressed his lay belief that he has a bilateral hearing loss disability for, a diagnosis of a hearing loss disability for VA purposes is not something that can be determined by mere observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis). Moreover, the Veteran’s lay opinion, albeit sincere, does not demonstrate that the mechanical criteria set forth in the relevant VA laws and regulations are met. Based on the foregoing, the Veteran has not, at any time during the appeal period, had a right ear hearing loss disability for VA purposes. The weight of the evidence is against the claim, and there is no reasonable doubt to resolve in the Veteran’s favor. The claim is denied. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.