Citation Nr: 21030945 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 06-08 007 DATE: May 20, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is at least as likely as not related to noise exposure during active service. 2. There is insufficient evidence to show the Veteran has had a left ear hearing loss disability at any time during the current appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to June 1977 and subsequent service with the National Guard. The Veteran was accorded a Board hearing in March 2010. As the Veterans Law Judge (VLJ) who conducted that hearing is now unavailable to adjudicate this claim, the Veteran was offered, but he did not elect to have, an additional hearing. A transcript of the March 2010 hearing has been added to the claims file. In June 2010 and January 2018, the Board remanded the claim for service connection for bilateral hearing loss for additional evidentiary development. That development has been completed, and the case returns to the Board for adjudication. The June 2010 and January 2018 Board Remands are incorporated herein by reference. The issue of entitlement to service connection for bilateral hearing loss on appeal has been bifurcated as indicated on the title page, as doing so allows for a favorable disposition on the claim of entitlement to service connection for right ear hearing loss. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion). Service Connection Right and Left Ear Hearing Loss The Veteran contends that he has bilateral hearing loss related to noise exposure experienced during active service. The Board finds that the Veteran does not have a left ear hearing loss disability, but that his diagnosed right ear sensorineural hearing loss warrants service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In adjudicating an appeal, the Board fully considers the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Under 38 C.F.R. § 3.385, for a disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, or 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Service medical records show the Veteran had mostly normal hearing, with a moderate right ear sensorineural hearing loss to 40dB at 4000Hz. On VA examination in February 2013, the Veteran's left ear was normal for VA purposes under 38 C.F.R. § 3.385. His right ear was normal with the exception of a puretone threshold of 45dB at 4000Hz, which is considered impaired for VA purposes. As such, during the appeal period, the Veteran's right ear has been established as having a disability under 38 C.F.R. § 3.385. Pursuant to the January 2018 Board remand, the Veteran was accorded an additional VA examination in February 2019. At that evaluation, his pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 15 35 LEFT 5 10 5 15 10 Again, the Veteran's left ear did not exhibit hearing loss for VA purposes under 38 C.F.R. § 3.385. However, his right ear threshold of 35dB at 4000 Hz is considered a disability for VA purposes. The examiner noted that the Veteran's MOS in carpentry had a high probability for hazardous noise exposure and had a shift in hearing during service. The examiner went on to state that it is as likely as not that the Veteran's right ear hearing loss was caused by, or was a result of, exposure during his active service. The Veteran's in-service exposure to hazardous noise is conceded and acknowledged by the examiners. His right ear threshold acuity at 4000Hz has been consistently documented throughout the appeal period, and the February 2019 VA examiner opined that it was as likely as not that his right ear hearing loss was related to his noise exposure during service. As such, the Board finds that service connection for right ear hearing loss is warranted. As for his left ear, the competent evidence fails to show a current hearing loss disability for VA purposes. First, service treatment records reflect no complaints or findings of hearing loss. Indeed, no hearing loss was noted at the separation examination, and post-service examinations reflect normal left ear hearing acuity with audiometer results of 0 to 15 dB thresholds for all relevant thresholds throughout the appeal period. The existence of disability as defined by section 3.385 is not subject to lay observation. It requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Hence, the opinion of the Veteran in this regard is not competent. In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is simply no probative evidence of current left ear hearing loss disability, as a threshold matter, and the claim for left ear hearing loss fails this basis alone. The preponderance of the (CONTINUED ON NEXT PAGE) evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.