Citation Nr: 21024724 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-13 887 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran does not have a current hearing loss disability of either ear as defined in the applicable regulation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from October 1991 to March 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which reopened and denied the claim of entitlement to service connection for bilateral hearing loss, which was previously denied in August 2000 and June 2015 rating decisions. In December 2016, the Veteran filed a timely notice of disagreement (NOD). In March 2017, the Veteran was issued a statement of the case (SOC) and the Veteran timely perfected his appeal (via VA Form 9). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In March 2020, the Board reopened the claim and remanded it for further development. The Board instructed that the audiometric data referenced in the January 2020 VA audiology note be associated with the claims file. As discussed below, the data was associated with the file and the agency of original jurisdiction thus complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss The Veteran contends that he currently has bilateral hearing loss that is related to acoustic trauma during military service. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A necessary element for establishing service connection is the existence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The presence of a disability at the time of filing of a claim, during its pendency, or approximate thereto, warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed the claim on appeal in August 2016. In assessing the Veteran’s service connection claim for bilateral hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Turning to the evidence of record, an April 2000 VA examination, just following separation, showed the following puretone threshold values for the Veteran (in dB) and speech recognition thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 15 LEFT 20 20 15 20 10 Speech audiometry using the Maryland CNC speech recognition test was not gathered at this VA examination. A September 2016 VA examination showed the following puretone threshold values for the Veteran (in dB) and speech recognition thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 10 15 LEFT 15 15 15 10 15 Speech audiometry using the Maryland CNC speech recognition test revealed recognition ability of 96 percent in the right ear and 94 percent in the left ear. A January 2021 VA examination showed the following puretone threshold values for the Veteran (in dB) and speech recognition thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 20 LEFT 10 15 15 25 25 Speech audiometry using the Maryland CNC speech recognition test revealed recognition ability of 100 percent in both ears. As noted, in order to be considered a disability for VA purposes, the decibels for any of the above frequencies must be 40 or greater, or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater, or speech recognition thresholds using the Maryland CNC Test are less than 94 percent. Here the Veteran’s auditory threshold increased in severity by the time of the third VA examination, but never once exceeded 26 decibels. Similarly, while the Veteran’s speech recognition thresholds using the Maryland CNC Test fell to 94 percent in the September 2016 VA examination, they never fell below 94 percent. In March 2020, the Board remanded the claim to associate with the claims file the audiometric data referenced in the January 2020 VA audiology note from the VA Fort Collins, Colorado Outpatient Clinic. The January 2020 audiogram has been associated with the claims file. The audiogram shows that speech audiometry reflected 100 percent recognition ability in the right ear and 96 percent in the left ear, but there is no indication that the Maryland CNC speech recognition test was used, as is required. Moreover, the audiogram did not contain a key identifying which measure was the right ear or left ear, despite one of the ears being recorded at 40 dB at 500 Hz, a reading that did not appear in any of the other audiology examinations in the Veteran’s record. While the Board could remand for clarification of this January 2020 audiology note, such clarification is required only when is “the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight.” Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 267–70 (2011)). In Savage, the Court indicated that this limited duty to clarify “includes medical examination reports of all kinds.” Id. at 270. Here, there are multiple other VA audiology examinations that are material to the issue at hand, therefore remanding for further clarification is not warranted. The evidence supporting current bilateral hearing loss consists of lay statements from the Veteran and from friends and family, specifically that he has had a hard time hearing since he left service, reads lips, and has difficulty hearing deep voices. While lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992) (indicating that disability ratings for hearing loss are assigned based on a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results). The lay evidence therefore cannot establish a current hearing loss disability for purposes of VA compensation benefits. While the Board is sympathetic to the Veteran’s claim it is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). For the above reasons, the preponderance of the evidence is against the existence at any time during the claim period, approximate thereto, or at any other time, a hearing loss disability of either ear as defined in the applicable regulation. The benefit of the doubt doctrine is therefore not for application and the claim must be denied because an essential element of the claim has not been established. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.