Citation Nr: 21041801 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 20-17 069 DATE: July 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability meeting the criteria of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Air Force from July 2004 to February 2013. This matter is on appeal from an April 2014 rating decision. The Board remanded this appeal in July 2019 for additional development. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). For purposes of applying the laws administered by VA, 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 above frequencies 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309 (a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral hearing loss The Veteran asserts their bilateral hearing loss as related to active duty service. The Veteran was afforded a March 2014 VA examination. The Veteran's puretone threshold levels in decibels were as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 5 10 15 5 9 LEFT 5 10 10 5 8 Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear, and 100 percent for the left ear. The examiner gave a diagnosis of normal hearing in both the right and left ears. Based on the evidence of record, the Board finds that the Veteran's puretone threshold for the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz was not 40 decibels or greater; the thresholds at three of the frequencies were not 26 or greater; and/or the speech recognition score using the Maryland CNC Test was not less than 94 percent. 38 C.F.R. § 3.385. Therefore, the weight of the evidence is against finding that the Veteran has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Without competent evidence of bilateral hearing loss, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, without a finding of a current disability, service connection is not warranted. The Board has considered the Veteran's statements. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, 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.