Citation Nr: 21024890 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 08-37 166A DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran has a current bilateral hearing loss disability for VA purposes during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from January 1969 to January 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for bilateral hearing loss. When this case was last before the Board in October 2020, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Board in October 2016. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the October 2016 Board hearing is no longer employed by the Board. In March 2021, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the October 2016 hearing is no longer employed by the Board and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. In April 2021, the Veteran responded, indicating he did not want a hearing. As such, the Board will consider the case on the evidence of record. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran seeks entitlement to service connection for bilateral hearing loss, which he asserts arose as a result of in-service exposure to automatic weapons, mortar, and artillery fire. While the Board concedes that the Veteran was exposed to significant noise during his period of service, the evidence does not demonstrate that the Veteran has had a hearing loss disability pursuant to VA regulation during the period on appeal; accordingly, entitlement to service connection for bilateral hearing loss must be denied. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. A VA audiological evaluation was conducted in December 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 30 LEFT 20 20 20 20 25 The Board notes that the December 2020 audiological evaluation does not demonstrate the presence of a hearing loss disability for VA purposes. Without proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Significantly, the Veteran is not shown by the competent evidence of record to have a hearing loss disability in accordance with 38 C.F.R. § 3.385 at any time during the pendency of the appeal. The Veteran provided a private opinion in July 2015 in which the examiner opined it was at least as likely as not that the Veteran’s hearing loss is the result of his acoustic trauma during his military service. Unfortunately, the Board was unable to discern the audiometric findings to determine if they met the disability criteria for VA purposes, but provided the Veteran with a new VA examination. The Board notes the Veteran was provided the opportunity to provide any private treatment records and provided the Veteran and his representative with VA Form 21-4142a; however, the completed form was not returned to the RO to obtain any private records. The Veteran’s statements of record regarding his observable symptoms, such as hearing difficulty, are probative evidence. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran is competent to report decreased hearing loss subsequent to his period of active service, the diagnosis of a hearing disability for VA purposes is based on objective audiometric testing and is not simply determined based on mere personal observation by a layperson. See 38 C.F.R. § 3.385. Thus, the question of whether the Veteran has a hearing disability for VA purposes does not lie within the range of common experience or common knowledge but requires special experience or special knowledge in the field of audiology, including audiometric testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is grateful for the Veteran’s honorable service to the United States. However, as no competent evidence has been provided indicating that the Veteran has had a hearing loss disability for VA purposes during the appeal period, the Board finds that the Veteran’s claim for hearing loss must be denied. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the Veteran’s claim for service connection, there is no reasonable doubt to be resolved, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.