Citation Nr: 21030526
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 16-44 599
DATE: May 19, 2021

ORDER

Service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran does not have a hearing loss for VA purposes.

CONCLUSION OF LAW

The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 2000 to December 2003, including service in Iraq. Additionally, he served in the Army National Guard from December 2003 to February 2005. 

In December 2018, the Board remanded this case for further development.

Service Connection

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a).

The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

Bilateral hearing loss

The Veteran asserts that service connection is warranted for bilateral hearing loss due to acoustic trauma in service. See Appellant's Brief (September 2020).  As the Board noted in the December 2018 remand, VA has acknowledged the Veteran's in-service exposure to acoustic trauma.

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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

In December 2018 the Board remanded the issue of entitlement to service connection for bilateral hearing loss to determine if the Veteran has a current bilateral hearing loss disability for VA compensation purposes. The Veteran was provided a VA examination in September 2019. The September 2019 examination shows that the Veteran does not have hearing loss for VA compensation purposes. See VA medical examination (September 2019). Further, the record does not show a previous VA examination that reflects that the Veteran had bilateral hearing loss for VA compensation purposes. See VA medical examination (July 2015).

The Board acknowledges that the September 2019 VA examiner stated that the Veteran does have high frequency hearing loss in his left ear that is not likely related to service. See VA medical examination (September 2019). However, this finding does not satisfy the criteria for hearing loss for VA purposes. See 38 C.F.R. § 3.385.

Since the September 2019 VA examination, the Veteran has not reported that his hearing loss has worsened since that time. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Thus, notwithstanding his assertion that he has bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current bilateral hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).

As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have a current bilateral hearing loss disability, service connection for bilateral hearing loss cannot be granted. Palczewski.

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Alvarado- 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.