Citation Nr: 21040248 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-08 226 DATE: July 2, 2021 ORDER Entitlement to service connection for hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of hearing loss for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral 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 for training from January 1987 to June 1987, and on active duty from February 2003 to April 2004 and June 2008 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. The matter was previously denied in an April 2012 rating decision by the RO which was not appealed by the Veteran and became final. In an April 2019 decision, the Board reopened the issue of entitlement to service connection for hearing loss and remanded the matter for additional development. It has now returned for further appellate review. Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for hearing loss The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. 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. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, 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, 159 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence (equipoise) regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In connection with the Veteran's reopened claim and pursuant to the April 2019 Board remand, the Veteran received a VA examination regarding the nature and etiology of his claimed hearing loss in November 2019. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 20 20 LEFT 25 20 15 25 20 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The Board notes that the record contains a September 2014 audiology consultation, however, as noted in the April 2019 Board remand, the consultation note was found to be inadequate for determining entitlement to service connection and will not be discussed again in this decision. As stated above, the first element of a successful claim for entitlement to service connection is a present disability. Here, the Veteran's hearing loss does not meet the requirements of hearing loss for VA purposes. Both the May 2013 and December 2019 VA examinations showed that the Veteran's ear auditory thresholds did not meet the requirement of 40 decibels or higher in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz, nor did they meet the requirement of 26 decibels or higher in at least three of the frequencies of 500, 1000, 2000, 3000, or 4000. Thus, the probative evidence of record shows that the Veteran's hearing loss does not meet the criteria of a hearing loss disability for VA purposes. Accordingly, as the Veteran's bilateral hearing loss does not meet the definition of hearing impairment under 38 C.F.R. § 3.385, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.