Citation Nr: 21027233 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-19 686 DATE: May 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for loss of vision is remanded. FINDING OF FACT The Veteran has not had a bilateral hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 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 from April 1970 to August 1970, with additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (the Board) on appeal from a March 2015 administrative decision. The Board previously remanded these matters in November 2018 for further development. While in remand status, a Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran's claim for service connection for tinnitus in a September 2020 decision. As this represents a full grant of the benefit sought, this issue is no longer before the Board. The Board previously remanded these matters in November 2018. As the actions specified in the prior remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include sensorineural bilateral hearing loss, service connection may be granted if the disease manifests to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks service connection for bilateral hearing loss, which he asserts was incurred in or caused by military noise exposure due to his military occupational specialty as an artilleryman. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a disability based on bilateral hearing loss is governed by 38 C.F.R. § 3.385. 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, or 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz 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. The United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of bilateral hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease 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). The Veteran underwent a VA audiology examination in October 2019. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 30 LEFT 20 15 20 25 30 Maryland CNC speech discrimination testing results were 100 percent in the right ear and 100 percent in the left ear. Based on the results of the examination, the Veteran is not shown to have a bilateral hearing loss disability under the provisions of 38 C.F.R. § 3.385. After a careful review of all the subjective and clinical evidence from the period on appeal, the Board finds that the preponderance of the evidence weighs against a finding that service connection for bilateral hearing loss is warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). After careful consideration of the objective audiometric testing of record from the period on appeal, the Board concludes that the Veteran does not have a current bilateral hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2019 VA examiner found that the Veteran did not have any auditory thresholds over 30 decibels in the 500, 1000, 2000, 3000, or 4000 hertz auditory frequencies in either ear. The examiner also found that the Veteran did not have any three auditory thresholds at 26 decibels or greater in the 500, 1000, 2000, 3000, or 4000 hertz auditory frequencies in either ear. Moreover, the Veteran had speech recognition scores of 100 percent in both the right ear and left ear. There is no other audiometric data from the period on appeal. There is no indication that the Veteran received any VA or private treatment for hearing loss at any time during the period on appeal. Therefore, the Board finds that the Veteran does not have a current bilateral hearing loss disability for VA purposes, as required under 38 C.F.R. § 3.385. Where there is no evidence of a current disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. In making this determination, the Board acknowledges the Veteran's statement that he sustained, and continues to suffer from, hearing loss due to in-service military noise exposure. While the Veteran is competent to report symptoms of disability, he is not shown to have the specialized medical training required to render a diagnosis for a complex medical condition such as sensorineural bilateral hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence to establish that he has a current diagnosis of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for bilateral hearing loss. Because the evidence fails to establish that the Veteran has a currently-diagnosed bilateral hearing loss disability for VA compensation purposes, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the Veteran's service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to service connection for loss of vision is remanded. The Veteran seeks service connection for loss of vision. The claims file consists of the Veteran's service treatment records (STRs) and a March 2015 Eye Conditions VA examination. but no other VA or private treatment records are in the claims file. The Veteran stated in his May 2015 Notice of Disagreement that there are missing VA treatment records. Specifically, the Veteran stated that he sought treatment at the San Juan VA Medical Center after he was released from active duty service. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the matter is REMANDED for the following actions: 1. Undertake appropriate efforts to request and associate with the claims file any outstanding VA treatment records immediately after the Veteran's active duty service in August 1970 from the San Juan VAMC relevant to the Veteran's claim for service connection for loss of vision. If the RO cannot locate the aforementioned records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. If the outstanding VA treatment records indicated above are found, obtain an addendum medical opinion from a VA examiner assessing the nature and etiology of the Veteran's current vision disability. The claims file, including a copy of this REMAND, must be made available to the examiner and it should be reviewed in its entirety. The requested opinion must specifically consider and address the newly associated VA treatment records. Thereafter, the examiner is asked to fully respond to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's loss of vision is causally related to the Veteran's active service? The examiner must set forth a complete rationale for any conclusion reached, citing to medical literature and/or evidence in the Veteran's claims file as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.