Citation Nr: 21042386 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-21 271 DATE: July 12, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is manifested by a speech discrimination score of 92. 2. The Veteran's left ear hearing loss is not manifested by a single puretone response of 40 decibels (dB) or greater or three puretone responses greater than 26 dB, or with an adequate speech discrimination scores of less than 94 percent for the left ear. CONCLUSIONS OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2000 to September 2004. This appeal returns to the Board of Veterans' Appeals (Board) after a July 2019 Board decision remanding these matters further development. This claim arises from a June 2013 Department of Veterans' Affairs (VA) Regional Office (RO) Rating Decision denying service connection for bilateral hearing loss. The Veteran timely appealed the denial to the Board. The Board remanded bilateral hearing loss in its July 2019 Decision. The Board finds substantial compliance with its July 2019 remand directives and therefore issues this decision on the merits. Entitlement to service connection for left ear and right ear hearing loss The Veteran contends that service connection is warranted for hearing loss. Specifically, he contends that he was exposed to acoustic trauma in service that caused his current hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish direct service connection, a veteran must show: (1) a present disability; (2) an 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 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may be granted for any disease 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). Impaired hearing is considered to be a disability for VA purposes if the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. To establish service connection for hearing loss, the requirements for hearing loss to constitute a disability as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during active service. 38 C.F.R. § 3.385; Ledford v. Derwinski, 3 Vet. App. 87 (1992). Therefore, the threshold question that must be addressed is whether the Veteran's claimed hearing loss qualifies as a disability, as defined by VA. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Turning to the evidence at hand, it is conceded that the Veteran experienced acoustic trauma in service. As such, the in-service element of service connection is met. The Veteran was afforded a VA examination in August 2020 in which the examiner provided a positive nexus opinion regarding service connection for both ears. As such, the medical nexus opinion element for service connection is met. Therefore, the only question before the Board is that of a current disability for VA purposes. The August 2020 VA examination also found that the Veteran's hearing loss does not meet the requirements under 38 C.F.R. § 3.385. Specifically, the August 2020 VA examination found: Aug. 2020 HERTZ 1000-4000 Ave. MD CNC Score 1000 2000 3000 4000 RIGHT 15 25 30 30 25 94 LEFT 15 20 25 25 21 96 It can be plainly seen from the audiogram results that none of the scores are 40 dB or greater. Also, no three results for either ear are 26 dB or higher, and the average loss being 25 for the right ear and 21 dB for the left ear. Further, the speech recognition scores using the Maryland CNC test are not less than 94 percent for either ear. Therefore, the August 2020 examiner opined that the Veteran's hearing at the examination did not meet the VA requirements for compensable hearing loss under 38 C.F.R. § 3.385. The Board notes that in August 2013 the Veteran underwent an audio consult for his hearing. The audiogram results for that visit are: Aug. 2013 HERTZ 1000-4000 Ave. MD CNC Score 500 1000 2000 3000 4000 RIGHT 30 30 30 30 30 30 N/A LEFT 10 15 15 20 30 20 N/A Right Ear This examination notes it is not adequate for adjudication purposes. The Board notes that the word recognition score are 80 percent for the right ear and 88 percent for the left ear. However, there is no indication that these are based on the Maryland CNC list. As such, this examination is inadequate for rating purposes. However, the Board does find this examination probative of the Veteran's disability condition during the period on appeal. The results show that the Veteran had auditory thresholds scores of 30 dB for more than three frequencies and an average loss of 30 dB for response from 1,000 dB to 4,000 dB. Therefore, this audiogram establishes that the Veteran had a disability during the period on appeal as defined by 38 C.F.R. § 3.385. Therefore, the Board finds that the evidence shows that the Veteran had a current disability during the period on appeal. This meets the third element, a current disability. Therefore, the Board finds that the record establishes all the elements for service connection for right ear hearing loss. As such, the Board grants service connection for the Veteran's right ear hearing loss. Left Ear The Board finds that the objective results from all audiograms fails to show hearing loss for VA purposes. No examination of record shows that the Veteran has an auditory response at any frequency above 40 dB, nor does any examination show that the Veteran has 26dB or more hearing loss for three frequencies from 500, 1,000, 2,000, 3,000, and 4,000 Hz, or a speech recognition score using the Maryland CNC test of less than 94 percent for the left ear. All in-service audio examinations, including a August 2000 entrance audio examination and a January 2003 in-service audio examination fail to show any instance in which the Veteran's left ear hearing loss rose to a level that would constitute hearing loss disability under VA regulations. See 38 C.F.R. § 3.385. The Board notes that all post service audio examinations, including the August 2013 audiogram, a June 2014 audiology consult (which also stated it is not sufficient of adjudication purposes for the same apparent reasons as the August 2013 consult), the August 2020 VA audio examination, fail to show that the Veteran has sufficient hearing loss in his left ear to qualify for a current disability for VA purposes under 38 C.F.R. § 3.385. The Veteran's hearing acuity in his left ear remains below the criteria for a diagnosis of hearing loss for VA purposes. The speech discrimination based on Maryland CNC list remains above the threshold to be considered a disability. Therefore, the Board finds that without a current disability of left ear hearing loss, the claim for service connection for left ear hearing loss must be denied. The Board realizes that the Veteran has asserted that he has a hearing loss disability. The Board notes that competent medical evidence of record includes an opinion that he has loss of hearing in both ears which is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). While the Board acknowledges that the Veteran may be competent to speak to the fact that his hearing is less than it was before, or as it was prior to service, he is not competent to speak to the specific level or severity of any hearing loss as it relates to achieving audiometric guidelines. For the purposes of applying the laws and regulations administrated by VA, the level of impairment is determined by a mechanical application of the objective criteria of VA regulations. Here, the objective criteria are not met by the Veteran's hearing acuity, and therefore, the Veteran's hearing loss cannot be considered a disability for which service connection may be granted. Therefore, the Board finds the evidence from the VA audiological examinations to be most probative in determining the proper diagnosis regarding the Veteran's claimed hearing loss. Consequently, the preponderance of evidence is against the finding of a current disability of left ear hearing loss for VA purposes. Therefore, the Veteran's claim of service connection for left ear hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page) In summary, the Board finds all the elements for right ear hearing loss are met and therefore grants service connection for right ear hearing loss. The Board finds that the preponderance of the evidence is against service connection for left ear hearing loss at this time and therefore must deny the claim. The Board encourages the Veteran to continue monitoring his left ear hearing loss. If the condition should worsen as shown by audiometric testing to meet the requirements of 38 C.F.R. § 3.385, to submit a supplemental claim identifying such results, findings of in-service events, continuity of such symptoms, and any positive opinion(s) for service connection he submits or are of record. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.