Citation Nr: 21029958 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-33 309 DATE: May 17, 2021 ORDER Service connection for right-ear hearing loss is denied. FINDING OF FACT There is no probative evidence of record demonstrating that the Veteran has a current diagnosis of right-ear hearing loss that meets the criteria for qualification as a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for right-ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from: (1) January 8, 2002, to November 14, 2002; (2) August 4, 2005, to October 16, 2006; (3) March 30, 2008, to July 9, 2008; (4) August 5, 2012, to July 22, 2013; and (5) May 23, 2015, to April 28, 2016. The Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board), in October 2017, remanded this issue to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for right-ear hearing loss. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. § 3.303 (a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders, including sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to these claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The threshold requirement for the grant of service connection, in essence, the first requirement for direct service connection, is that the disability claimed must be shown present. 38 U.S.C. § 1110. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Id. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). According to VA standards, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. The Veteran underwent VA audiological examinations specifically conducted to determine if he had right-ear hearing loss that meets the criteria for qualification as a disability for VA purposes on three occasions during the appellate period, beginning in October 2008, when he filed his claim of entitlement to service connection for bilateral hearing loss. In a May 2009 audiological Disability Benefits Questionnaire (DBQ), the Veteran demonstrated pure tone thresholds, in decibels, of 25, 20, 15, 10, 15, for the right ear, measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition was 100 percent. In a December 2013 audiological DBQ, the Veteran demonstrated pure tone thresholds, in decibels, of 15, 15, 10, 10, 20, for the right ear, measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition was 100 percent. In a March 2021 audiological DBQ, the Veteran demonstrated pure tone thresholds, in decibels, of 25, 20, 15, 15, 25, for the right ear, measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition was 96 percent. Other instances of audiological testing during the appellate period are of record; none show right-ear hearing loss that meets the criteria for qualification as a disability for VA purposes, save for one instance of testing dated in October 2014. At that time, the Veteran demonstrated pure tone thresholds, in decibels, of 20, 15, 20, 25, 40, for the right ear, measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. Word recognition was 100 percent. The Board notes that the October 2014 audiogram results indicate that the Veteran presented with a pure tone threshold of 40 decibels at 4000 Hz, suggesting the presence of right-ear hearing loss meeting the criteria for qualification as a disability for VA purposes under 38 C.F.R. § 3.385. However, because the October 2014 audiogram is an outlier regarding the presence of right-ear hearing loss, and is not consistent with the other evidence of record, including the VA audiological DBQs in May 2009, December 2013, and March 2021, and numerous other audiograms of record dated throughout the appellate period, the Board finds that it is not probative of the presence of a right ear hearing loss disability at the time. As there is no probative evidence that the Veteran demonstrated an auditory threshold in any of the specified frequencies of 40 decibels or greater, auditory thresholds for at least three of these frequencies of 26 decibels or greater, or speech recognition scores less than 94 percent, his right-ear hearing loss does not meet the criteria for qualification as a disability for VA purposes. 38 C.F.R. § 3.385. The Board, in its October 2017 decision, granted service connection for left-ear hearing loss, and the Veteran asserts generally that his right-ear hearing loss is related to his in-service noise exposure. The Veteran is competent to report the sensation of decreased hearing acuity; there is no indication that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. However, the Veteran is not competent to provide lay evidence as to more complex medical questions, in this case, the threshold inquiry for service connection, the diagnosis of a current disability, right-ear hearing loss that meets the criteria for qualification as a disability for VA purposes under 38 C.F.R. § 3.385. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is no evidence that he has the expertise to diagnose himself with such. Thus, the Board finds that the Veteran's general lay assertion is not competent or sufficient and is not probative evidence in the present case. As there is no probative evidence establishing the presence of a right-ear hearing loss disability, the current disability requirement for a service connection claim is not satisfied. The Board finds that the preponderance of evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56. Accordingly, the claim of entitlement to service connection for right-ear hearing loss must be denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.