Citation Nr: 21026982 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-45 167 DATE: May 4, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran does not have a current left ear hearing loss disability to an extent recognized as a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1989 to December 1993. This matter initially came to the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in part, denying the Veteran's request to revise a previous 1994 rating decision denying service connection for hearing loss, on the basis of clear and unmistakable error (CUE). The Veteran filed a Notice of Disagreement in August 2015 and a Statement of the Case was issued on November 2015. The Veteran filed a timely appeal (VA-Form 9) in December 2015. New VA audiometric examinations were conducted in July 2016 and, in September 2016, the RO issued a rating decision granting service connection for the Veteran's right ear with an evaluation of 0 percent, effective February 18, 2015. As to the Veteran's claim of service connection for left ear hearing loss, a Supplemental Statement of the Case (SSOC) was issued in September 2016, continuing the denial of the CUE motion. In April 2019, the Board denied the CUE motion, but reopened the previously denied claim for service connection for left ear hearing loss and remanded the claim on the merits. A SSOC was issued in August 2020 continuing the denial of service connection for left ear hearing loss. Entitlement to service connection for left ear hearing loss. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air 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 injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Organic diseases of the nervous system such as sensorineural hearing loss are chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Furthermore, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the Veteran alleges that he has left ear hearing loss due to in-service noise exposure. Specifically, the Veteran recounted that as a military photographer, he was in close proximity to aircraft engines on the flight line, as he photographed VIP personnel. He was also exposed to other maintenance noise during service, although he acknowledges wearing hearing protection. However, considering the pertinent evidence of record, in light of the governing legal authority, the Board finds that service connection for left ear hearing loss is denied on the basis that there is no current disability. The presence of a disability at the time of filing of a claim or during its pendency 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. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed the claim on appeal in February 2015. In September 2016, the Veteran underwent a VA audiological examination. HERTZ 500 1000 2000 3000 4000 LEFT 15 15 10 20 25 Speech discrimination testing revealed speech recognition ability of 98 percent in the left ear. In August 2020, the Veteran underwent a VA audiological examination. The evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 15 20 25 Speech discrimination testing revealed speech recognition ability of 96 percent in the left ear. The Veteran is currently service connected for his right ear. In an April 2021 written brief, he argued that it is a reasonable conclusion that whatever acoustic trauma during service that resulted in his service-connected right ear, would also have impacted his left ear. However, in light of the audiological test results outlined above, the Veteran does not meet the current disability requirement for left ear hearing loss because his speech recognition scores were not less than 94 percent and he did not have an auditory threshold of 40 decibels at any frequency or a threshold of 26 or more decibels at three frequencies. See 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. See 38 U.S.C. § 1110. The provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation. See Hensley, 5 Vet. App. at 158. Therefore, there can be no entitlement to service connection for left ear hearing loss where, as here, there is an absence of evidence that the Veteran currently has at any time during the pendency of the claim had left ear hearing loss to an extent recognized as a disability under the governing regulation. The Board notes that it cannot draw a bright line at the date of claim but must consider all of the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). The February 1994 audiologic and speech recognition test scores also do not reflect a hearing loss disability as defined by VA. In reaching the above conclusion, the Board has considered the Veteran's statements concerning his left ear hearing loss and the resulting functional impairments. However, VA has determined that hearing loss only constitutes disability for VA compensation purposes if it meets specific audiometric criteria. As those criteria have not been met, service connection is not warranted. Based on the foregoing, the preponderance of the evidence is against the claim of entitlement to service connection for left ear hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for left ear hearing loss must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. K. Donaldson, 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.