Citation Nr: 18154203
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 15-24 713
DATE:	November 30, 2018
ORDER
Entitlement to service connection for right ear hearing loss disability is denied.
FINDING OF FACT
The Veteran does not have a current right ear hearing loss disability.  
CONCLUSION OF LAW
The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from May 2008 to May 2013.
This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated July 2014, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia (hereinafter Agency of Original Jurisdiction (AOJ)) that granted service connection for tinnitus and left ear hearing loss disability, but denied service connection for a right ear hearing loss disability because the Veteran’s did not have a current disability as defined by VA regulation.  See 38 C.F.R. 3.385.  The Veteran perfected a timely appeal of the denial of service connection for a right ear hearing loss disability.
Service Connection
In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).
When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Entitlement to service connection for right ear hearing loss disability
The Veteran seeks service connection for a right ear hearing loss. Following a thorough review of the record, the Board finds that he is not entitled to an award of service connection, as he does not currently have hearing loss disability of his right ear as defined by VA regulation.  See 38 C.F.R. 3.385.
The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 
A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id.
During service, in February 2013, the Veteran underwent an audiological evaluation, which showed puretone thresholds, in decibels, as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	15	25	30	45	50

The examiner did not report Maryland CNC speech discrimination values.
While the February 2013 inservice examination contains puretone threshold findings greater than 40 dB in two frequencies and greater than 26 dB in three frequencies, the weight of the evidence is against a finding that he has a current right ear hearing loss disability for VA compensation and pension purposes.  
In this regard, during the course of the current appeal, the Veteran was provided an audiological evaluation in June 2014, which showed puretone thresholds, in decibels, as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	10	5	25	35	35
Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  Thus, a right ear hearing loss disability is not shown during this examination as there were no puretone thresholds greater than 40 dB at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz); auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or speech discrimination scores of less than 94 percent.
Therefore, while some hearing impairment is shown during the June 2014 audiological examination and the VA examiner attributed the hearing impairment to service, the impairment does not rise to the level sufficient to constitute a right ear hearing loss disability under 38 C.F.R. § 3.385.  The record contains no other audiometric findings that would establish a current right ear hearing loss disability for VA compensation and pension purposes.  Accordingly, as a current right ear hearing loss disability is not shown, the claim must be denied.  
In reaching this conclusion, the Board has considered the Veteran’s lay reports of symptoms. The Veteran is competent as a lay person to report certain symptoms, his reports of hearing loss and similar symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Moreover, the findings of the June 2014 examination do show that he has some level of right ear hearing impairment.  However, the Veteran, as a lay person, is not competent to render an opinion that his hearing impairment rises to a level sufficient to satisfy the regulatory requirement for establishing a current hearing loss disability under 38 C.F.R. § 3.385.  
The objective clinical and diagnostic evidence of record shows the Veteran does not have a current diagnosis of hearing loss disability in his right ear. In the absence of proof of a present disability, there can be no valid claim for direct service connection. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).
Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with right ear hearing loss disability during the pendency of his appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kathryn Bristor 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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