Citation Nr: A23036282 Decision Date: 12/18/23 Archive Date: 12/18/23 DOCKET NO. 200511-86320 DATE: December 18, 2023 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a right or left ear hearing loss disability for VA compensation purposes at any point during the pendency of the appeal. CONCLUSION OF LAW The criteria to establish service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to June 1994. The issue of bilateral hearing loss was denied by a final February 1995 rating decision. However, in the April 2020 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) readjudicated the claim. The Board is bound by this favorable finding. In the May 11, 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Service Connection for Bilateral Hearing Loss Service connection will be granted 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The requirement that a current disability exists is satisfied if the Veteran had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).? VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event.? 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102.? The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination.? See?Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz?v.?Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran in this case asserts that he has hearing loss, which he attributes to acoustic trauma sustained during active service. The Veteran's exposure to hazardous noise is conceded. Notably, he is in receipt of service connection for tinnitus based on such exposure. In September 1994 and April 2020, the Veteran underwent VA audiology examinations, at which time he had normal hearing, bilaterally. No frequency between 500 Hertz and 4000 Hertz met the criteria for a hearing loss disability for VA purposes: three or more frequencies were not 26 decibels or greater and there was no frequency between 500 Hz and 4000 Hz that was 40 or higher. 38 C.F.R. § 3.385. In addition, speech recognition was not lower than 96 percent for the right ear and 100 percent for the left ear, which also does not meet the criteria for a hearing loss disability for VA purposes. The Board finds the VA audiological findings adequate and highly probative as an audiogram was conducted and Maryland CNC testing was utilized. The Board recognizes the Veteran's assertion that he has hearing loss that warrants a 20 percent disability rating; however, there is no indication that the objective audiograms are invalid, and the Veteran provided no competent evidence showing otherwise. In addition, throughout the pendency of the claim, private and VA treatment records continuously showed hearing grossly intact, normal hearing, and the Veteran's denial of hearing loss and agreement that he was not a hearing aid candidate. See e.g., October and November 2013 VA treatment records and May 2020 private treatment records. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). A hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing. While the Veteran is competent to relate symptoms of hearing loss that he experienced at any time, he is not competent to diagnose a hearing loss disability because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing. While the Veteran experiences some hearing difficulty, none of the audiometric results throughout the pendency of the appeal meet the criteria for a hearing loss disability for VA purposes. His hearing difficulty is not shown to rise to the level of a hearing loss disability for VA purposes. While in some circumstances a specific diagnosis is not required to satisfy the current disability requirement, Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (pain can constitute disability if it results in impairment and is due to disease or injury in service), the requirements for establishing a hearing loss disability have been specifically enumerated in 38 C.F.R. § 3.385, as indicated. Where, as here, a bilateral hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated, the claim must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.