Citation Nr: 21041921 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-25 782 DATE: July 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT At no time during the pendency of the claim has the Veteran had bilateral hearing loss that met the threshold level of severity to be considered a disability for VA compensations purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 2011 to August 2012. He also had service in the Army National Guard. Entitlement to service connection for bilateral hearing loss. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For the 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 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). With regard to the threshold issue of a current disability, audiometric testing results from an October 2016 examination shows normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the October 2016 audiological exam revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 25 20 LEFT 10 20 30 15 25 Maryland CNC speech recognition testing was 96 percent for both ears. In comparing the results of the audiological testing to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against a finding that the Veteran currently has a bilateral hearing loss disability as defined for VA compensation purposes. Neither ear has any frequency at 40 decibels or greater, at least three frequencies at 26 decibels or greater, or speech recognition scores less than 94 percent. The Board does not doubt that the Veteran experiences a decreased level of ability to hear, as the October 2016 VA examiner indicated that the Veteran has mild clinical sensorineural hearing loss. However, it has not reached the level of severity necessary to be deemed a disability for VA compensation purposes. Furthermore, he is not competent to diagnose the disability, as it requires prescribed diagnostic testing in accordance with 38 C.F.R. § 3.385. Without a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). For this reason, the Veteran's service connection claim for a bilateral hearing loss is denied. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease is remanded. 2. Entitlement to service connection for tinnitus is remanded. A review of the Veteran's claims file reflects that a significant portion of his military personnel records and service treatment records are missing. According to the Veteran's April 2021 hearing testimony, he enlisted in service approximately in 2008 and was discharged from service in 2016. The available records do not provide dates for the Veteran's remaining periods of active duty and reserve service. Regarding his tinnitus, the Veteran contends that his disability began while still in service and he had "several years of consistent noise exposure." See April 2021 Hearing Transcript. Regarding his coronary artery disease, medical records indicate that he was first diagnosed on July 29, 2011. See September 2016 Private Medical Opinion. It is unclear from the available records whether he was on either inactive or active duty for training when he sustained a heart condition and/or experienced symptoms related to his heart condition. The same can be said for the Veteran's tinnitus. Overall, the Board finds that clarification as to the dates of the Veteran's active duty, inactive duty for training, and active duty for training is necessary prior to adjudication of the issues. In addition, the RO should search for the Veteran's missing treatment records for the time he was in the National Guard. The matters are REMANDED for the following action: 1. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), Defense Finance Accounting Service (DFAS), the Veteran's reserve unit(s) or any other appropriate repository of records and request the Veteran's complete service personnel and treatment records from 2008-2016, to include: Any treatment he received from the infirmary in Mobile, Alabama, the US Army Reserve Medical Support Unit, Camp Shelby in Hattiesburg, Mississippi, and summer camp in Tampa, Florida; and Any records specifying his dates of active duty, annual training, active duty for training, and inactive duty for training, to include any Statements of Service or special orders indicating that the Veteran was assigned to any other status other than reserve status. A request should be made for his Military Master Pay Account via the state National Guard and Army Reserve Headquarters or the Defense Finance Accounting Service (DFAS). If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice should be provided to the Veteran and his representative. 2. After completing the actions detailed above, readjudicate the claims. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.