Citation Nr: 21032488 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-44 962 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's current hearing loss is not to a disabling level for the right or left ear as defined by the VA regulatory criteria at 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to April 1988, from October 1988 to June 1989, from August 1998 to April 1999, from February 2003 to February 2005, and from April 2009 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter was most recently remanded to the Agency of Original Jurisdiction (AOJ) in February 2020. Following the requisite development, a supplemental statement of the case (SSOC) was issued in August 2020. This matter has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for bilateral hearing loss. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 200, 3000, 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 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. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When a chronic disease such as hearing loss, which is considered an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for an enumerated "chronic disease" shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service treatment records report multiple audiometric examinations with normal results. In 1989, the Veteran complained of a brief period of hearing loss, but stated it was due to getting water in her ear which self-corrected. Following this complaint, no ear pain, drainage, ringing, or trauma were found upon examination. In February 2011, the Veteran reported decreased hearing during a post-deployment examination. The audiometric testing noted normal hearing, and the pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 10 15 LEFT 15 15 20 20 15 Post-service treatment records do not show that the Veteran was diagnosed with hearing loss within one year of separation from active service. Therefore, the preponderance of the evidence demonstrates that the Veteran has not had a hearing loss disability since separation from active duty or a disability that began within a year of separation from service. Although the Veteran claims her hearing loss began during service, the Board finds that her lay statements, alone, are not enough to establish a hearing loss disability, as defined by VA regulation, began during service. And the Veteran's service treatment records note her hearing as normal. Such a determination can only be made with proper audiological testing; lay statements are insufficient to determine pure tone frequency thresholds. 38 C.F.R. § 3.385; Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent the lay evidence may allege a perception of decreased hearing acuity during service, these perceptions do not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a "disability" is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure. McKinney, 28 Vet. App. at 24-5. In short, any lay recollections of decreased hearing acuity since or during service is not capable of showing it rose to the level of a "disability" for VA purposes in service, or to a ratable level of disability within one year of service discharge. As such, service connection is not warranted based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a). Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In connection with her claim, the Veteran was afforded a VA examination in January 2015 to determine the nature and etiology of her hearing loss. During the examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 10 15 LEFT 15 15 20 20 25 Speech audiometry revealed speech recognition ability of 96 percent in both ears. Based on these findings, the VA examiner opined that there is no diagnosis of bilateral hearing loss because there is no pathology to render a diagnosis. In further support of this conclusion, the examiner noted the 1989, 1998, 2000, 2004, 2005 in-service examinations showing normal bilateral hearing, as well as the 2009 and 2011 hearing conservation data showing normal hearing bilaterally. A July 2015 private audiometric examination reported the pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 10 15 15 LEFT 15 20 20 25 25 However, speech audiometry revealed speech recognition scores of less than 94 percent in each ear, which are much lower than the threshold required by 38 C.F.R. § 3.385. The private audiologist did not provide an opinion regarding the etiology of the reported hearing loss. Pursuant to the February 2020 Board Remand, the private audiologist who provided the July 2015 was asked whether the speech recognition scores provided were conducted using the Maryland CNC speech discrimination test. See the Report of General Information dated August 2020. Notably, a private audiologist verified that the testing was performed using the Maryland CNC speech discrimination test. Id. Following the Board remand, the Veteran was afforded a second VA examination in October 2019 to determine the nature and etiology of her hearing loss. During the examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 15 20 LEFT 15 15 15 15 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear, and 96 percent in the left ear. Based on these findings, the VA examiner opined that there is no diagnosis of bilateral hearing loss because there are no findings, signs, and or symptoms to support a diagnosis. Also, in March 2020, the Veteran's private treating physician noted the Veteran's hearing as grossly intact. In short, while the Veteran contends that she should be service connected for bilateral hearing loss, the Board finds that service connection should be denied because the probative evidence of record supports the finding that the Veteran does not have a current diagnosis of bilateral hearing loss as defined by VA regulations. In making this determination, the Board finds that the most probative evidence are the January 2015 and October 2019 VA examinations. The examiners considered the Veteran's lay statements, as well as the entire record. Additionally, the examiners' conclusions and findings are supported by the Veteran's medical history and contemporary medical records. The opinions of the VA examiners were rendered by a medical professional with the expertise to opine on the matter at issue in this case. Also, a hearing loss disability is diagnosed primarily on objective clinical findings, including speech recognition, and audiometric testing; thus, while the Veteran is competent under the facts of this case to report symptoms of hearing loss that she experienced at any time, she is not competent to diagnose a hearing loss disability that meets 38 C.F.R. § 3.385 because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing that the Veteran is neither trained to administer nor is capable of administering to oneself, even if trained. The Board notes July 2015 private audiometric examination, which found the Veteran's speech audiometry revealed speech recognition ability lower than 94 percent in both ears. However, these findings are contradicted by the remaining evidence of record. Additionally, prior and subsequent examinations found the Veteran's had speech recognition ability of 94 percent in the right ear and 96 percent in the left ear, at their worst. Also, the private audiologist did not provide any opinion regarding the etiology of the Veteran's claimed hearing loss. Therefore, the Board assigns the July 2015 private audiometric examination less probative weight. In closing, Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). Here, the Veteran does not meet the criteria for a hearing loss disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz, supra; Gilbert, supra. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.