Citation Nr: 18154140
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-56 103
DATE:	November 29, 2018
ORDER
Entitlement to service connection for bilateral hearing loss disability is denied.
FINDING OF FACT
The Veteran has not had bilateral hearing loss to an extent recognized as a disability for VA purposes throughout the pendency of the claim or any time.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 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 October 1975 to September 1981 and from February 1984 to August 1987. He had additional service with the Air Force Reserve. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision.
Entitlement to service connection for bilateral hearing loss disability
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Hearing loss is considered to be 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; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the claim period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).
In this case, the Veteran contends that he has current bilateral hearing loss disability and that this disability is related to exposure to loud noises and ear injury in service. The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury or disease.
The Veteran is competent to report noise exposure and ear problems in service, his service records document evidence of hearing/ear problems in service, and the Board has basis to challenge the credibility of his reports. Regardless of such evidence, the Board concludes, for the following reasons, that the Veteran does not have current hearing loss to an extent recognized as a disability for VA purposes and has not had such disability at any time during the pendency of the February 2014 claim or approximate thereto. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
The Veteran was afforded a VA audiological examination in May 2014. During that examination, his pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	15 	25	10	30	25
LEFT	15 	25	10	25	30
Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.
While the Veteran believes he has current bilateral hearing loss disability, he is not competent to provide a diagnosis in this case. Although veterans are competent to opine as to some medical matters, Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n. 4 (Fed. Cir. 2007), VA has determined that for hearing loss to constitute disability, certain audiometric and speech recognition scores must be present.  The Board is bound by the laws and regulations that apply to veterans’ claims.  38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017).

The above evidence does not establish bilateral hearing loss to the extent recognized as a disability for VA purposes, and the Veteran has not alluded to the existence of any other evidence establishing a current bilateral hearing loss disability. Despite the Veteran’s competent and credible reports of in-service noise exposure and ear/hearing symptoms, the determination of whether hearing loss constitutes a disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. The provisions of 38 C.F.R. § 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Hence, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. 
Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. Thus, where, as here, the evidence establishes that the Veteran does not have the hearing loss disability for which service connection is sought, pursuant to the applicable regulation that defines the disability in terms of audiometric and speech recognition scores, there can be no valid claim for service connection. See Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. As such, service connection for bilateral hearing loss disability must be denied because the first criterion for an award of service connection-evidence of current disability upon which to predicate such an award-has not been met. 

(Continued on the next page)
 
Accordingly, the Board finds that the claim of service connection for bilateral hearing loss disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Elwood, Counsel 

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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