Citation Nr: 21030433 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-44 488 DATE: May 18, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's left ear hearing loss had its onset in service. 2. Throughout the appeal period, the Veteran's right ear hearing loss has been normal for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1976 to August 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018 and was remanded for further development. The Board finds that substantial compliance with its remand instructions has occurred. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for left ear hearing loss and entitlement to service connection for right ear hearing loss The Veteran contends that he has bilateral hearing loss due to in-service noise exposure. Service records show that the Veteran's military occupational specialty (MOS) included pilot. Therefore, the Board concedes in-service noise exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the 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 was afforded VA audiological examinations in October 2005 and September 2020. At the October 2005 VA examination, the following puretone thresholds, in decibels were shown: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 5 20 5 LEFT 10 15 30 40 The Veteran had a puretone threshold average of 9 for the right ear, and 24 for the left ear. 38 C.F.R. § 4.85 (d) requires the averaging of the 1000, 2000, 3000 and 4000 Hz findings. Speech discrimination scores reflected percentages of 100 percent in the right ear and 88 percent in the left ear. The VA examiner found that the Veteran had normal hearing. The Board notes that the audiogram findings show that the Veteran's hearing loss is normal for VA purposes. Here, none of the frequencies show decibels of 40 or greater, or 3 of the frequencies of 26 decibels or greater. Speech recognition scores were also not less than 94 percent. The Board notes that the VA examiner provided a negative nexus opinion at this time. At a December 2014 private examination, the following puretone thresholds, in decibels were shown: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 15 X 20 LEFT 10 30 40 45 The Veteran had a puretone threshold average of 31.25 for the left ear; as a value is missing for the 3000 Hz range in the right ear, a puretone threshold average was not found. Speech discrimination scores reflected percentages of 100 percent in the right ear and 92 percent in the left ear. The private examiner found that the Veteran had normal sloping to slight sensorineural hearing loss in the right ear and a normal sloping to mild sensorineural hearing loss in the left ear. The private audiologist explained that the Veteran's hearing loss was likely due to noise exposure, specifically exposure to outside engines of the plane. The Board notes that these audiogram findings are not in compliance with VA required Maryland CNC testing; therefore, the values are less probative. At the September 2020 VA examination, the following puretone thresholds, in decibels were shown: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 20 30 35 LEFT 10 40 55 65 The Veteran had a puretone threshold average of 25 for the right ear, and 42.5 for the left ear. Speech discrimination scores reflected percentages of 96 percent in both ears. The Board notes that the audiogram findings show that the Veteran's right ear hearing loss is normal for VA purposes. Here, none of the frequencies show decibels of 40 or greater, or 3 of the frequencies of 26 decibels or greater. Speech recognition scores were also not less than 94 percent. However, the Veteran does have left ear earing loss for VA purposes. The examiner opined that it was unlikely that the Veteran's hearing loss was caused by or the result of his military service. As rationale for this opinion, the VA examiner indicated the Veteran's separation examination did not show a significant shift in hearing compared to his entrance examination. The Board notes that a lack of hearing loss in service is not a bar to service connection. Specifically, laws and regulations applicable to the Veteran's claim do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, at 159 (1993). Additional post-service treatment records are silent for any nexus opinions or any evidence of right ear hearing loss for VA compensation purposes. Overall, and giving the Veteran the benefit of the doubt, the Board finds that his left hearing loss is related to service. However, there is no indication of right ear hearing loss for VA compensation purposes. The Board finds the evidence in equipoise as the December 2014 private audiologist found the Veteran's hearing loss to be due to service in contrast with the September 2020 VA examiner's negative nexus opinion. The Board acknowledges that both opinions are partially inadequate. Specifically, the December 2014 private audiologist did not review the treatment records and the September 2020 VA examiner's rationale was based on a lack of hearing loss at separation from service. However, as a whole, there is evidence of current left ear hearing loss, in-service noise exposure, and positive and negative nexus opinions. Therefore, the evidence is, at minimum, in equipoise regarding whether the Veteran's left ear hearing loss is related to his active service. Regarding the right ear hearing loss, as noted above, the evidence of record does not demonstrate a current showing of right ear hearing loss disability for VA compensation purposes. The Board has considered the Veteran's lay statement that he has bilateral hearing loss. However, the issue of whether there is hearing loss for VA purposes is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or Maryland CNC speech recognition results that would reveal bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. Absent evidence showing current right ear hearing loss for VA purposes, service connection for right ear hearing loss is not warranted and the Board need not discuss the other two elements of a service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ('In the absence of proof of a present disability there can be no valid claim'). The evidence weighs against a finding of a right ear hearing loss disability as defined by 38 C.F.R. § 3.385 at any time in the appellate period or relevant to the appellate period. Resolving reasonable doubt in the Veteran's favor, service connection for left ear hearing loss is granted; service connection for right ear hearing loss is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.