Citation Nr: 22069167
Decision Date: 12/15/22	Archive Date: 12/15/22

DOCKET NO. 18-07 713
DATE: December 15, 2022

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran does not have a current hearing loss disability for VA purposes.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army from June 1997 to February 2011.

The Regional Office (RO) originally denied the Veteran's claim in an August 2013 rating decision.

The Board of Veterans' Appeals (Board) previously remanded this matter in April 2019.  The Board remanded the issue of hearing loss for further development.

Factual history

The Veteran denied a history of hearing loss in her entrance report of medical history.  The February 1997 Entrance Examination audiometer of the left ear showed auditory thresholds of 0 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, 0 dB at 4000 Hz, and 20 dB at 6000 Hz.  The same February 1997 audiometer of the right ear showed 0 dB at 500, 1000, and 2000 Hz, 20 dB at 3000 Hz, 0 dB at 4000 Hz, and 15 dB at 6000 Hz.   In February 1997, the examiner also marked the Veteran's hearing as normal in the physical profile.  In the August 1997 Report of Medical History, the Veteran denied hearing loss.  An August 1997 audiogram of the left ear showed 5 dB at 500 and 1000 Hz, 10 dB at 2000 Hz, 5 dB at 3000 and 4000 Hz, and 20 dB at 6000 Hz.  The same August 1997 audiogram of the right ear showed 5 dB at 500 Hz, 10 dB at 1000, 2000, and 3000 Hz, 15 dB at 4000 Hz, and 10 dB at 6000 Hz.  In October 1997, an examiner marked the Veteran's hearing as normal.  An October 1997 audiogram of the left ear showed 10 dB at 500 Hz, 0 dB at 1000, 2000 and 3000 Hz, 5 dB at 4000 Hz, and 0 dB at 6000 Hz.  The same October 1997 audiogram of the right ear showed 5 dB at 500 and 1000 Hz, 0 dB at 2000 Hz, 20 dB at 3000 Hz, 5 dB at 4000 Hz, and 20 dB at 6000 Hz.  A January 1999 audiogram of the left ear showed 0 dB at 500,1000, 2000, 3000, and 4000 Hz, and 35 dB at 6000 Hz.  The same January 1999 audiogram of the right ear showed 10 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 Hz, 10 dB at 3000 Hz, 0 dB at 4000 Hz, and 20 dB at 6000 Hz.  A February 2000 audiogram of the left ear showed 0 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 and 3000 Hz, and 5 dB at 4000 and 6000 Hz.  The same February 2000 audiogram of the right ear showed 5 dB at 500 Hz, 0 dB at 1000 Hz, 5 dB at 2000 Hz, 15 dB at 3000 Hz, 5 dB at 4000 Hz, and 20 dB at 6000 Hz.  In September 2002, an examiner marked the Veteran's hearing as normal in a physical profile.  The September 2002 audiometer of the left ear showed 10 dB at 500 Hz, 5 dB at 1000 and 2000 Hz, 10 dB at 3000 Hz, and 20 dB in 4000 and 6000 Hz.  The same September 2002 audiometer of the right ear showed 0 dB at 500 Hz, 15 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, 0 dB at 4000 Hz, and 10 dB at 6000 Hz.  A September 2002 audiogram of the left ear showed 10 dB at 500 Hz, 5 dB at 1000 and 2000 Hz, 10 dB at 3000 Hz, and 0 dB at 4000 Hz, and 20 dB at 6000 Hz.  The same September 2002 audiogram of the right ear showed 0 dB at 500 Hz, 15 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, 0 dB at 4000 Hz, and 10 dB at 6000 Hz.  The September 2002 Report of Medical History showed no history of hearing loss.  However, the September 2002 audiogram indicated that the Veteran routinely incurred noise exposure.  The August 2003 audiogram of the left ear showed 0 dB at 500, 1000, and 2000 Hz, -10 dB at 3000 Hz, 5 dB in 4000 Hz, and 15 dB at 6000 Hz.  The same August 2003 audiogram of the right ear showed 5 dB at 500 and 1000 Hz, 0 dB at 2000 Hz, 15 dB at 3000 Hz, 10 dB at 4000 Hz, and 20 dB at 6000 Hz.  In August 2006, an examiner noted a history of earache in the right ear.  In January 2007, the examiner noted no hearing loss.  A December 2008 audiogram of the left ear showed 0 dB at 500, 1000, and 2000 Hz, 5 dB at 3000 and 4000 Hz, and 20 dB at 6000 Hz.  The same December 2008 audiogram of the right ear showed 10 dB at 500 and 1000 Hz, 5 dB at 2000 Hz, 20 dB at 3000 Hz, 10 dB at 4000 Hz, and 20 dB at 6000 Hz.  In February 2009, the Veteran denied any perceived change in her hearing since the last audiogram done in December 2008.  In May 2010, an examiner noted no hearing loss.  In October 2010, the Veteran denied any perceived change in her hearing since the last audiogram done in December 2008.  An October 2010 audiogram of the left ear showed 10 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, 10 dB at 4000 Hz, and 25 dB at 6000 Hz.  The same October 2010 audiogram of the right ear showed 0 dB at 500 Hz, 5 dB at 1000 Hz and 2000 Hz, 15 dB at 3000 Hz, 10 dB at 4000 Hz, and 25 dB at 6000 Hz.  In October 2010, the Veteran also reported no hearing loss.  The October 2010 examiner noted no history of ear infections or trauma.  The October 2010 examiner also noted that thresholds were within normal limits.  The October 2010 examiner also noted high normal thresholds at 6KHz AU.  The October 2010 examiner also noted that there was an early warning "ro" a decreased in hearing at 3KHz AS.  The October 2010 examiner released the Veteran without limitations.  In the January 2011 Separation Report of Medical History, the Veteran reported ear drum burst and possible mild hearing loss.  In the January 2011 Separation Examination, the examiner determined that the Veteran's ears were normal.  The January 2011 Separation Examination audiometer of the left ear showed auditory thresholds of 10 dB at 500 Hz, 5 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, 10 dB at 4000 Hz, and 25 dB at 6000 Hz.  The same January 2011 audiometer of the right ear showed 0 dB at 500 Hz, 5 dB at 1000 and 2000 Hz, 15 dB at 3000 Hz, 10 dB at 4000 Hz, and 25 dB at 6000 Hz.  The January 2011 examiner noted mild hearing loss.  Throughout service, the Veteran's MOS was as a Judge Advocate General.

VA afforded the Veteran a VA examination in November 2019.  The November 2019 Hearing Loss audiometer of the left ear showed auditory thresholds of 15 dB at 500 and 1000 Hz, 20 dB at 2000 and 3000 Hz, 25 dB at 4000 Hz, and 40 dB at 6000 Hz.  The same June 2019 audiometer of the right ear showed 20 dB at 500, 1000, and 2000 Hz, 25 dB at 3000 and 4000 Hz, and 35 dB at 6000 Hz.  Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 100 percent for the left ear and 96 percent for the right ear.  The November 2019 examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies.  The Veteran reported at the examination that she has to wear headphones at work and turns the volume on high to hear.  She stated that she was unsure if this was due to the telephone or from hearing loss.  The November 2019 VA examiner stated that hearing thresholds for both ears did not meet the criteria for disability under VA regulations as the pure tone threshold average for at least three frequencies must be 26 dB hearing loss or greater; or speech recognition scores must be less than 94 percent.  The examiner found that the pure tone threshold average for at least three frequencies was 23 dB hearing loss (right ear) and 20 dB hearing loss (left ear), which was not greater than 26 dB hearing loss.  Speech recognition scores were 96 percent (right ear) and 100 percent (left ear).  Based on this evidence, examiner concluded the Veteran's hearing loss was not a VA ratable hearing loss for disability.

Entitlement to service connection for bilateral hearing loss

The Veteran asserts that she has hearing loss that is related to her active service.  See January 2012 Veteran's Application for Compensation.

Service connection

The VA grants service connection if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish service connection on a direct-incurrence basis, the evidence must show: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, VA presumes certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Additionally, VA service connects based on continuity of symptomatology for the chronic diseases specified at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the purposes of applying the laws administered by VA, impaired hearing will be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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 also McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing because of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385).

VA grants service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155 (1993).  To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present.  Service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Analysis

Based upon a review of the evidence, as the Veteran does not have a current hearing loss disability for VA purposes, the criteria for service connection for bilateral hearing loss are not met.

As stated above, the Veteran had an MOS of Judge Advocate General.  The Veteran's MOS had a low probability for hazardous noise exposure.  Audiological examinations during service indicated that the Veteran had normal bilateral hearing during service.  38 C.F.R. § 3.385; see also McKinney, supra.  

The Veteran had a VA examination in November 2019, which indicated normal hearing and sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies.  The examiner indicated that although the Veteran may have had impaired hearing, it did not meet the criteria to be considered a disability for VA purposes.

Based on the evidence as outlined above, service connection for bilateral hearing loss is not warranted, because the evidence persuasively favors a finding that the Veteran does not have a current hearing loss disability for VA purposes.  Service connection cannot be granted if there is no present disability.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385.

The clinical evidence of record indicates that the Veteran does not have a current disability for VA purposes.  As noted, although the Veteran has a current diagnosis of sensorineural hearing loss, the Veteran's auditory thresholds do not meet the requirements to be considered a disability for VA purposes.  At no time during the period on appeal has the Veteran's auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz been 40 dB or greater, 26 dB or greater in at least three of the frequencies, and the Veteran did not have a speech recognition score of less than 94 percent.

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Additionally, there is no evidence that reflects hearing loss which manifested in service or within the one-year presumptive period.  Therefore, the chronic disease provisions for service connection are not for application.  As such, service connection for hearing loss is denied because the first criterion for an award of service connection evidence of a current disability upon which to predicate such an award has not been met.  For the above reasons, the evidence is neither evenly balanced nor approximately so regarding whether entitlement to service connection for bilateral hearing loss is warranted; thus, the benefit of the doubt doctrine is not for application in this regard.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Koottappillil

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.