Citation Nr: 21025209 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-37 233 DATE: April 27, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The probative evidence of record does not show that a bilateral hearing loss disability for VA purposes has manifested at any time during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in an April 2019 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in May 2019 to afford the Veteran an additional examination to assess whether he has a current diagnosis of hearing loss. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran served on active duty in the United States Air Force from May1971 to July 1978. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include sensorineural hearing loss) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). During the April 2019 hearing, the Board conceded that the Veteran experienced in-service noise trauma, acoustic trauma in service. Additionally, of note, the February 2015 VA examiner has conceded in-service noise exposure. Therefore, the main question before the Board is whether the Veteran has a current bilateral hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease to include his presumed exposure to noise. A review of the Veteran’s service treatment records does not reflect audiometric testing showing a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In fact, when comparing the several in-service audiograms the audiometric testing illustrates improved hearing, to include the comparison of the May 1971 entrance audiogram to the March 1978 audiograms. The Veteran has been afforded two VA examinations for his hearing loss during the appeal period. As will be discussed below, the Board finds that the probative evidence of record does not show bilateral hearing loss in accordance with VA regulations. The February 2015 VA audiological examination reflect the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 25 15 20 25 30 22.5 LEFT 20 15 15 20 35 21.25 Maryland CNC speech discrimination testing showed recognition of 94 percent in the right ear and in the left ear. The examiner concluded that the Veteran’s hearing was normal, bilaterally. The December 2019 VA audiological examination reflect the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 AVG RIGHT 10 10 15 15 25 16 LEFT 5 5 10 15 30 15 Maryland CNC speech discrimination testing showed recognition of 96 percent in the right ear and in the left ear. The examiner concluded that the Veteran’s hearing was normal in the right ear, and that there was sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies in the left ear. Although the examiner concluded that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz in either ear, he provided an etiology opinion. The examiner stated that although the Veteran’s military of specialty (MOS) had a high probability of noise exposure there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation and on examination the Veteran’s hearing of the right ear was within normal limits and in the left ear hearing was normal sloping to a mild high frequency sensorineural hearing loss. The examiner went on to state that hearing thresholds do not meet the criteria for disability under VA regulations. The examiner then concluded that therefore it is less likely as not that the hearing loss is due to military noise exposure or acoustic trauma. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss disability. The Board appreciates the Veteran’s contentions and statements related to his claimed bilateral hearing loss. Even finding that the Veteran was exposed to significant noise in service, the probative evidence does not show that he has been diagnosed with a bilateral hearing loss disability by VA standards at any point during the timeframe on appeal. There is no audiogram of record to indicate hearing loss to constitute a hearing loss disability of the right ear or of the left ear for VA benefits purposes. In other words, the clinically valid audiological examination (s) during the timeframe on appeal did not reveal auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores of less than 94 percent in either ear. Likewise, no single examination shows at least three auditory thresholds of 26 decibels or greater or during the time frame on appeal. With respect to the Veteran’s contention that he currently has a hearing loss disability, a layperson is competent to attest to the onset and continuity of symptomatology. As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § § 3.385. The Board recognizes that although there is no disability of bilateral hearing loss the December 2019 examiner opined that the hearing loss is not related to service. Absent competent and reliable evidence of a claimed bilateral hearing loss disability, the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. In closing, the Board recognizes the Veteran’s active service and is cognizant of the multiple disabilities for which service connection is in effect. The decision contained herein certainly does not preclude the Veteran from reapplying for service connection for bilateral hearing loss, should he find that this disability presents itself. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.