Citation Nr: 22017664 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-36 260 DATE: March 25, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence is persuasively against a finding that the Veteran has or has had at any time during the appeal period, bilateral hearing loss for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1997 to March 1999. This matter is on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously before the Board of Veterans' Appeals (Board) in February 2019 and October 2021 when it was remanded for further development. The Board finds that there has been substantial compliance with the remand instructions and the issue is properly before the Board for adjudication. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (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; 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. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran contends that he is entitled to service connection for bilateral hearing loss since he experienced significant noise exposure while working abroad a naval aircraft carrier. Specifically, from aircraft operating night and day, power tools being used on the ship, and the sound from daily ship operations. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Here, the Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 C.F.R. § 3.303 (a),(d). In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). To that end, the Veteran was provided VA examinations in June 2016 and October 2019, where the examiners stated that the puretone test results were not valid for rating purposes because the Veteran's responses were too inconsistent to record. As to speech recognition score, the June 2016 examiner could not test speech discrimination scores for either ear. The examiner explained that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent word recognition scores that made combined use of Puretone average and word recognition scores inappropriate. However, during the October 2019 examination, the Veteran's speech discrimination score was 94 percent in both ears. The Board recognizes that in the June 2016 and October 2019 examination reports, the examiners noted diagnoses of bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz, despite having previously stated that they were unable to obtain accurate readings. However, in an addendum opinion from October 2021, a VA examiner explained that examination "worksheet...forces a diagnosis to be made, even when results are not reliable. The [V]eteran was reporting hearing loss, so even though it was not documented, the diagnosis code was the most appropriate to select." Determining the presence of bilateral hearing loss for VA purposes involves mechanical applications of puretone threshold findings and speech discrimination scores. Thus, without a valid puretone threshold results, a current hearing loss for VA purposes cannot be established. Considering this fact with the explanation provided by the October 2021 VA examiner, the Board concludes that the notations of diagnosis of bilateral hearing loss in the June 2016 and October 2019 examination reports are insufficient to establish a current disability. Moreover, the Veteran was afforded another VA audiological examination in January 2022 where again the examiner could not test the puretone thresholds in decibels and explained that the testing could not be done because it was inconsistent with organic hearing loss. Speech discrimination was 94 percent for the right ear and 96 percent for the left ear during this exam. In summary, the record does not have competent evidence that demonstrates a current bilateral hearing loss for VA purposes. VA has discharged its duty to assist by providing multiple examinations that were unable to yield valid auditory threshold results throughout the appeal period. The Veteran's speech recognition scores are not less than 94 percent. Thus, there is no indication that the Veteran had hearing loss at the level considered to be a disability for VA purposes. (Continued on the next page) The issue of whether there is hearing loss for VA purposes is medically complex and requires specialized knowledge and experience, as well as specialized testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or provide Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. Thus, the Veteran's lay evidence is not competent evidence of a current disability, no matter how sincere. Absent evidence showing a current hearing loss for VA purposes, service connection for bilateral hearing loss is not warranted and the Board need not discuss the other two elements of a service connection claim. Brammer, 3 Vet. App. at 225. The evidence weighs against a finding of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time in the appellate period. Thus, the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sarone Solomon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.