Citation Nr: 21028383 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-22 726 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. 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 January 1995 to January 1999. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in July 2019 for further development. As the actions specified in the prior remand have been substantially completed, this matter has 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). As an initial matter, the Veteran has previously stated that his employment may be impacted due to his service-connected disabilities. Pursuant to the Board's remand, the RO sent the Veteran correspondence in May 2020 requesting that he complete VA Form 21-8940 Veterans Application for Increased Compensation Based on Individual Unemployability. As of this decision, the Veteran has not responded. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. 190 (1991). If the Veteran believes his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, he is encouraged to file VA Form 21-8940. In light of the claim decided herein, as well as the general statement of the Veteran, a TDIU is not deemed raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 infantryman. 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 VA audiology examinations in June 2015, June 2016, and September 2020. The June 2015 audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 15 LEFT 20 20 15 15 15 Maryland CNC speech discrimination testing results were 94 percent in the right ear and 94 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. The Veteran underwent an additional VA audiological examination in June 2016. The June 2016 audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 15 15 LEFT 15 15 15 10 5 Maryland CNC speech discrimination testing results were 100 percent in the right ear and 96 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. Pursuant to the Board's July 2019 remand, the Veteran was afforded an additional VA audiological examination in September 2020. The September 2020 audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 20 LEFT 20 20 15 15 10 Maryland CNC speech discrimination testing results were 94 percent in the right ear and 96 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). None of the VA examiners found that the Veteran had any auditory thresholds over 30 decibels in the 500, 1000, 2000, 3000, or 4000 hertz auditory frequencies in either ear. Likewise, none of the VA examiners found the Veteran to 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's speech recognition scores were 94 percent in both the right ear and left ear, at worst. 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. (Continued on the next page) In making this determination, the Board acknowledges the Veteran's general statements 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. 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.