Citation Nr: 21031072 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-48 358 DATE: May 20, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran has, or has had at any time during the appeal, a right ear hearing loss disability. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service in the United States Navy from March 1987 to December 1995; and in the United States Army from October 2001 to May 2002; from September 2002 to July 2003; and from September 2004 to May 2014, including service in Southwest Asia. These matters come before the Board of Veterans' Appeals on appeal from an April 2016 and February 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is associated with the claim's files. Previously, the Veteran's claim was before the Board in March 2020 for additional development (a new VA hearing loss examination), which has been completed. As such the Board finds that the prior remand directives have been substantially complied with and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that the Veteran was service connected for left ear hearing loss in a February 2021 rating decision. Therefore, the only claim currently before the Board is entitlement to service connection for right ear hearing loss. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). The threshold requirement for service connection to be granted is competent evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. In addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § § 3.385. Right Ear Hearing Loss Service personnel records show that the Veteran was a U.S. Navy storekeeper but with duty assignments aboard submarines. He reported that he was a sonar supervisor. Because a supervisory position would very likely require an experienced, rated sonarman, it is more likely was simply assigned watches as a sonar operator. Considering these duties, exposure to loud noise is minimal as equipment has volume controls. In Army service, the Veteran served in combat engineering units as a supply specialist. The Veteran reported exposure to high levels of noise during both periods of service although that is consistent with Army duties. Service treatment records contain the records of several audiometric tests. The Veteran's service treatment records (STR's) are associated with the claims file. In a November 1995 report of medical discharge examination, the clinical evaluation revealed the Veteran's ears and drums were normal. See November 1994 Medical Treatment Record-Government Facility, p.1. The Veteran also reported he was in good health and had no ear, nose, or throat trouble; however, he stated he did not know if he ever had hearing loss. See November 1994 Medical Treatment Record-Government Facility, p.2. The separation audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 5 In a December 1995 report of medical examination, the Veteran stated that he was currently in good health, on no medication, and denied ever having hearing loss or ever wearing a hearing aid. See January 2014 STR, p.11. In a November 2009 service treatment record, the Veteran indicated that he did not have any trouble hearing and used hearing protection some days. See March 2015 STR, p.168-170. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 15 20 15 20 45 In a December 2013, report of retirement medical examination, the Veteran denied that he had at the time or in the past had hearing loss or wore a hearing aid and denied ear, nose, or throat trouble. See January 2014 STR, p.6,11. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 0 5 LEFT 10 10 10 5 25 In a December 2013 VA treatment record, the Veteran reported no hearing loss. See March 2015 STR, p.26. In April 2014, the Veteran was afforded a hearing loss and tinnitus contracted VA examination. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 25 LEFT 10 20 15 10 30 Speech recognition ability was 98 percent in the right ear and 96 percent in the left ear. The audiologist indicated both ears were normal. The examiner indicated that no medical evidence was available for review. These results do not show hearing loss that met the VA criteria for disability. There was no diagnosis or pathology to render a diagnosis. In December 2019, the Veteran attended a Board hearing. The Veteran testified that his hearing loss occurred due to normal wear and tear while in the Navy. The Veteran further indicated that he was a sonar supervisor and had to endure pinging while in-service. The Veteran was in the Army and worked as a combat engineer. The Veteran noted as a combat engineer there was a lot of explosions and vehicle noise. He testified that he wore hearing protection, but they would be "in and out, in and out. The Veteran stated he passed his hearing test because he knew the rhythm and also, he had a hard time hearing because he could hear echoes. He stated he could not hear in a restaurant due to all the people, so his wife would have to tell him what the waitresses were saying. It was further noted that the Veteran's service records indicated he had abnormal hearing while on active duty in the Army. During the Board hearing, the Veteran reported that he had been provided hearing aids at a VA clinic. See December 2019 Hearing Transcript, p. 2-6. In a January 2020 VA audiology note, the Veteran denied dizziness, ear pain, ear pressure, ear surgery, chronic ear infections, ear trauma, a family history of hearing loss and occupational or recreational noise exposure. The clinician indicated that his right ear revealed clear external auditory canal and acoustic immittance testing was consistent with normal ear canal volume, normal compliance and normal peak pressure indicating normal tympanic membrane function. Pure tone testing revealed hearing was within normal limits (250 Hz-8k Hz). The Veteran's word recognition ability was excellent at 100 percent. The Veteran was ordered a hearing aid, but it was only recommended for the left ear but not the right ear due to normal hearing sensitivity. In November 2020, the Veteran was afforded another hearing loss and tinnitus VA examination. The examiner reviewed the claims file; considered the Veteran's accounts and conducted an evaluation. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 5 15 LEFT 15 20 15 15 40 Speech recognition ability was 100 percent in the right ear and 100 percent in the left ear. The audiologist indicated that his right ear was normal, and his left ear had sensorineural hearing loss in the range of 500-4000 Hz. The examiner indicated that no etiology was provided for the right ear because there was no right ear hearing loss. The examiner noted that the Veteran had normal earing in his March 1987 enlistment examination and was within normal limits in his right ear at his December 2013 separation examination. There was mild hearing loss in the left ear. The examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's hearing was within normal limits at the time of the examination. A temporary STS was noted in November 2009. For the right ear, as shown above in the November 2020 VA examination, the Veteran's thresholds were not 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 hertz at any time; and were not 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz. See 38 C.F.R. § 3.385 (2018). Therefore, right ear hearing loss is not shown for VA compensation purposes at any time during the period on appeal. The Board acknowledges the Veteran's assertion that he does in fact have hearing loss in both ears. There is not sufficient audiological evidence of his right ear pure tone thresholds or speech recognition scores meeting the VA regulatory criteria for a hearing loss disability for VA compensations purposes, which is required for service connection. The Board concludes that service connection for right ear hearing loss is not warranted and the claim is denied; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.