Citation Nr: 22018156 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-52 561 DATE: March 28, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have 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. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1993 to January 2014. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction (AOJ)). The Veteran testified before the undersigned Veterans Law Judge during a July 2021 Board hearing. A written transcript of that hearing is of record. The Board notes that this matter was remanded to the AOJ in August 2021 for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran 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). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 200, 3000, or 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. Service connection for hearing loss may be granted 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 purposes, 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, 159 (1993). When a chronic disease such as hearing loss, which is considered an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for an enumerated "chronic disease" shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The Veteran is seeking service connection for bilateral hearing loss caused by exposure to acoustic trauma during service. Careful review of the Veteran's service treatment records shows an auditory threshold shift in service. Comparisons of the testing accomplished for his entrance examination in 1993, audiometric testing in 1996, 1997, 1998, 2000, 2006, 2007, 2009, 2010, 2011, 2012, and 2013 show gradually changes in audiometric results over this period of time. However, none of these reports during service show hearing impairment either by audiometry results or word recognition testing - which meets the VA-defined standard set forth at 38 C.F.R. § 3.385. Post-service treatment records do not show that the Veteran was diagnosed with hearing loss within one year of separation from active service. Therefore, the evidence demonstrates that the Veteran has not had a hearing loss disability since separation from active duty or a disability that began within a year of separation from service. 38 C.F.R. § 3.385. Further, to the extent the lay evidence may allege a perception of decreased hearing acuity during service, these perceptions do not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a "disability" is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure. McKinney, 28 Vet. App. at 24-5. In short, any lay recollections of decreased hearing acuity since or during service is not capable of showing it rose to the level of a "disability" for VA purposes in service, or to a ratable level of disability within one year of service discharge. As such, service connection is not warranted based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge under 38 C.F.R. § 3.309(a). Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In connection with his claim, the Veteran was afforded a VA examination in October 2015 to determine the nature and etiology of his hearing loss. During the examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 10 10 10 5 10 Speech audiometry revealed speech recognition ability of 98 percent in both ears. The Veteran was diagnosed with normal hearing. Based on these findings, the VA examiner opined that given the Veteran's use of hearing protection, his normal hearing at enlistment, normal hearing on various audiograms throughout service, normal hearing at separation, and normal hearing on the current exam, the Veteran's claimed hearing loss is less likely than not the result of military noise exposure. Lastly, during the examination, the Veteran stated that he does not notice a hearing loss, but his wife has noticed that he occasionally misses information during conversation. During the July 2021 Board hearing, the Veteran described experiencing a sensation in his ears, which sounds like being underwater and then a high-pitched ringing in both ears. And then the sensation slowly goes away over time. Also, the Veteran explained that the described events cause him difficulty when speaking on the phone. Upon remand, the Veteran was provided a second VA examination in January 2022. During the examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 15 LEFT 10 15 15 10 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 100 percent in the left ear. The Veteran was diagnoses of normal hearing was confirmed. Further, the results show that he still does not have hearing loss as defined by VA standards in 38 C.F.R. § 3.385. The examining audiologist reviewed his service treatment records and subsequent medical records and stated that although the Veteran's noise exposure during service is conceded, the Veteran used hearing protection when exposed to noise during military service. And the Veteran does not have hearing loss according to VA standards. Therefore, although the Veteran currently manifests some levels of decreased hearing acuity, he does not have a hearing loss disability for VA compensation purposes. None of the evidence of record show hearing loss meeting VA standards at any time during the appeal period. Moreover, while the Veteran is competent to report a decrease in hearing acuity, he is not competent, as a lay person to diagnose hearing loss pursuant to VA criteria as such requires the administration and interpretation of audiometric testing. See Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that, at no time during the pendency of the appeal does the Veteran have a current disability of bilateral hearing loss for VA purposes. Consequently, as there is no current disability of bilateral hearing loss, service connection for such disorder is not warranted. 38 C.F.R. §§ 3.303, 3.385. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.