Citation Nr: 21040865 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-26 246A DATE: July 7, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss as defined by VA regulation. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his left ear hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that there may be some confusion over the issue of entitlement to service connection for tinnitus as the May 2020 supplemental statement of the case denied service connection for tinnitus. However, service connection for tinnitus was granted and assigned a 10 percent disability rating in a June 2019 rating decision. As it has been resolved by a full grant of benefits, the issue of entitlement to service connection for tinnitus is no longer in appellate status. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for right ear hearing loss is denied. 2. Entitlement to service connection for left ear hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38C.F.R. §§3.307 (a)(3), 3.309(a). For those listed chronic disabilities, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38C.F.R. §3.303 (b); Walker v. Shinseki,708 F.3d 1331 (Fed. Cir 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 70 (1994). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) 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. 38C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159 60. The Veteran contends that his current bilateral hearing loss was caused by his in-service hazardous noise exposure. According to the Veteran's military personnel records, to include his DD 214, he served as an aviation boatswains mate, which has a high probability of hazardous noise exposure. The Veteran reported that he was exposed to loud noises during his ten years of active duty and that the hearing protection was ineffective. In light of the foregoing, in-service noise exposure is conceded. Service treatment records do not show complaints of, treatment for, or a diagnosis of hearing loss. In a December 2018 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 30 20 LEFT 15 20 25 40 35 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The December 2018 examiner opined that it was less likely than not that the Veteran's hearing loss was due to his military service. He noted that the January 1973 and June 1982 examinations showed normal hearing for VA purposes. The examiner noted that the Veteran served as an aviation boatswains mate, which had a high probability of hazardous noise exposure and did not have high noise exposure after service. He cited research indicating that the delayed onset hearing loss was unlikely. In a February 2019 notice of disagreement and September 2019 VA Form 9, the Veteran contended that his hearing loss was due to his in-service noise exposure. He also reported that he first noticed his hearing loss in 1975 while serving on the USS Ranger, which continued during his service on the USS Coral Sea. Based on a careful review of the subjective and clinical evidence, the Board concludes that the Veteran does not currently have right ear hearing loss by VA standards and has not had right ear hearing loss at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The December 2018 VA audiological examination showed that the Veteran's right ear hearing loss did not result in auditory thresholds of 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz or auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz. Further, his speech recognition scores using the Maryland CNC Test were 100 percent in both ears. While the Veteran is competent to report hearing difficulties, he is not competent to diagnose hearing loss, including by VA standards or otherwise. Such a diagnosis requires specialized knowledge of audiograms and an ability to interpret all pertinent responses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As the evidence does not include a competent diagnosis of right ear hearing loss, the criteria for entitlement to service connection for right ear hearing loss are not met. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. In this case, the competent evidence establishes that the Veteran does not have the disability for which service connection is sought, that is right ear hearing loss consistent with 38 C.F.R. § 3.385, and thus, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the claim for service connection for right ear hearing loss must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, is not met. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for right ear hearing loss and the claim must be denied. 38 U.S.C. § 5107 (b). Based on a careful review of the evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran's current left ear hearing loss is etiologically related to his military noise exposure. The Board finds that the December 2018 VA audiological examination is inadequate as to the etiology of the Veteran's left ear hearing loss as it appears to be primarily based on absence of documented hearing loss in active service. The Board notes that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the examiner did not sufficiently address the Veteran's lay statements regarding the onset of his hearing loss. As such, the December 2018 VA examination has little probative value. The Board finds that the statements from the Veteran that his hearing loss began during active service to be credible. Therefore, the Board finds that based on the competent and credible statements regarding the onset and continuity of his left ear hearing loss symptoms and the fact that the Veteran had in-service hazardous noise exposure, the evidence is at least in equipoise, and service connection for left ear hearing loss is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, his service connection claim for left ear hearing loss is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.