HEARING LOSS

Summary

The Veteran served from December 2004 to March 2006 and January 2008 to February 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision concerning entitlement to service connection for bilateral hearing loss and left and right knee strains. The Board reviewed the evidence of record at the time of the June 2021 decision, as well as evidence submitted by the Veteran and their representative. The Veteran participated in a virtual hearing in April 2025. For the bilateral hearing loss claim, the Board found that the Veteran did not meet the criteria for a current disability based on VA examinations conducted in September 2019 and November 2020. These examinations did not show the required auditory thresholds or speech recognition scores. Consequently, the Board denied service connection for bilateral hearing loss, noting the lack of evidence of a current disability and the absence of a nexus opinion from the Veteran due to lack of medical expertise. The Board found the medical evidence more probative than lay statements. For the left and right knee strain claims, the Board found that while the Veteran had a current diagnosis, the service treatment records were silent regarding any in-service complaints, treatment, or diagnosis of a knee condition. However, the Veteran reported developing a knee condition after deployment in 2009 due to frequent vehicle entry and exit. The Board determined the evidence was inadequate to decide the claim due to a pre-decisional duty to assist error in failing to obtain a medical opinion on direct service connection. Therefore, these claims were remanded for a new VA examination to determine if the knee condition is related to service.

Rationale

No current disability found per VA exams; Auditory thresholds did not meet criteria; No nexus opinion from Veteran due to lack of medical expertise

Full Decision Text

Citation Nr: A26039209
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210806-177930
DATE: April 28, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for left knee strain is remanded.

Entitlement to service connection for right knee strain is remanded.

FINDING OF FACT

The Veteran does not have a diagnosis of bilateral hearing loss for VA disability compensation purposes.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.326, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 2004 to March 2006 and from January 2008 to February 2009. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). 

In the August 2021 notice of disagreement, the Veteran selected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ rating decision on appeal, any evidence submitted by the Veteran or the accredited representative at the Board hearing, to include testimony provided at the hearing, and any evidence submitted by the Veteran or the accredited representative within 90 days following the Board hearing. See 38 C.F.R. § 20.302. 

Any evidence added to the record during an ineligible period could not be considered by the Board in the instant decision. See 38 C.F.R. § 20.300. The evidence not able to be considered may be resubmitted in conjunction with a VA Form 20-0995, Decision Review Request: Supplemental Claim. Any new and relevant evidence will be adjudicated by the AOJ in an additional rating decision, along with the available evidence of record. See Cook v. McDonough, 36 Vet. App. 175 (2023).   

The Veteran appeared before the undersigned Veterans Law Judge for an April 2025 virtual hearing. A copy of the transcript is associated with the claims file and evidence of record.

The matters are now before the Board for consideration.

1. Entitlement to service connection for bilateral hearing loss.

Evidence and Analysis

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. See 38 C.F.R. § 3.385.

An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a Pure-tone audiometry test. Examinations are conducted without the use of hearing aids. See 38 C.F.R. § 4.85.

Addressing the facts of this case, the first requirement for service connection is competent and credible evidence of a current disability, or in the alternative, evidence of the existence of a disability at some point during the relevant period on appeal. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) ("The U.S. Court of Appeals for the Federal Circuit has upheld the Secretary's interpretation of applicable statutes that a disability must not only be service connected to be awarded VA disability compensation, it must also be current at the time a claim is filed.").  

To assist the Veteran with the development of his claim, he was provided with VA medical examinations in September 2019 and November 2020. Unfortunately, the Veteran did not have a single auditory threshold at either 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 40 decibels (dB) or greater, at
 McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) ("The U.S. Court of Appeals for the Federal Circuit has upheld the Secretary's interpretation of applicable statutes that a disability must not only be service connected to be awarded VA disability compensation, it must also be current at the time a claim is filed.").  

To assist the Veteran with the development of his claim, he was provided with VA medical examinations in September 2019 and November 2020. Unfortunately, the Veteran did not have a single auditory threshold at either 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 40 decibels (dB) or greater, at least three auditory thresholds at either 500, 1000, 2000, 3000, or 4000 Hz 26 dB or greater, or speech recognition scores below 94 percent. See September 2019 and November 2020 VA Hearing Loss and Tinnitus examination reports.

Therefore, the first element of service connection has not been satisfied. The Board cannot award disability benefits where a disability does not exist. In the absence of proof of a current disability for which service connection may be granted, including as due to functional impairment, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without evidence of a disease or injury for which service connection is an available remedy, there is no need for the Board to address the remaining elements of or pathways to entitlement, including secondary or presumptive service connection.  

Conclusion

In summary, the evidence of record persuasively weighs against a finding that the Veteran is entitled to service connection for hearing loss.  Evidence of a diagnosis during the relevant period on appeal is lacking in the available record. The Board cannot award disability benefits where a disability does not exist.  

Diagnosing hearing loss requires the expertise of a medical professional, particularly when there has been a significant passage of time without any documentation of symptomatology, which is the case here. While the Veteran can report symptoms that he experiences, he does not have the necessary training to offer medical opinions. An opinion regarding service connection from the Veteran is of less probative value because he lacks the medical expertise needed to diagnose hearing loss or to attribute it to active military service.

Therefore, the medical evidence of record, including service treatment records, VA medical examinations, and VA treatment records, has been accorded greater probative value and weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."); see also Wood v. Derwinski, 1 Vet. App. 190 (1991) ("The [Board] has the duty to assess the credibility and weight to be given to the evidence.").

Having considered any lay statements, the Board sympathizes with the Veteran.  However, the most probative evidence of record is not sufficient to warrant a grant of service connection or a determination that further development of the evidence is required. The evidence of record, aside from any lay statements in support of this claim, persuasively weighs against the claim for service connection of a hearing loss condition. Therefore, service connection is not warranted, and the claim must be denied.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1961 (Fed. Cir. 2001).

REASONS FOR REMAND

1. Entitlement to service connection for left knee strain is remanded.

2. Entitlement to service connection for right knee strain is remanded.

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. It may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

To
1).

REASONS FOR REMAND

1. Entitlement to service connection for left knee strain is remanded.

2. Entitlement to service connection for right knee strain is remanded.

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. It may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).

To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Evidence and Analysis

The Veteran has been diagnosed with a disability. See June 2021 VA Knee and Lower Leg Conditions examination report. Therefore, the first element of service connection has been satisfied.

Regarding an in-service event, service treatment records are silent for complaints of, treatment for, or a diagnosis related to a knee condition. See September 2003 to February 2004, December 2004 to March 2006, and January 2008 to February 2009 Veteran service treatment records, June 2003 Report of Medical Examination, June 2003 Report of Medical History, May 2007 Pre-Deployment Health Assessment, March 2008, Pre-Deployment Health Assessment, August 2008 Post-Deployment Health Assessment, and December 2008 Report of Medical Assessment.

However, the Veteran reports that he developed a knee condition "since 2009, when he returned from deployment, after jumping in and out of vehicles a lot." See June 2021 VA Knee and Lower Leg Conditions examination report and April 2025 Virtual Board Hearing Transcript.

Concerning a nexus to service, the evidence of record is not adequate to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The June 2021 VA medical examination addresses only service connection as an undiagnosed illness or medically unexplained chronic multi-symptom illness. See June 2021 VA Knee and Lower Leg Conditions examination report.

While the Board regrets the delay associated with additional development, a remand is necessary to address the pre-decisional duty to assist error in not obtaining a medical opinion on direct service connection. See 38 U.S.C. § 5103A. 

Therefore, the matters are REMANDED for the following actions:

1. Obtain an addendum opinion. The Veteran's record should be made available to and reviewed by the examiner. An opinion as follows is requested:

a.	Whether the Veteran's bilateral knee condition is the result of or is otherwise etiologically related to military service?

Provide a detailed rationale, citing to data in the record, for any conclusions reached, noting that a VA medical opinion is considered inadequate when it relies exclusively on the lack of evidence in the service treatment records to dissociate a claimed condition from the veteran's military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 

The VA examiner must consider and address the statements of the Veteran and set forth a clear and reasoned analysis, the source of the most probative value in a medical report, including generally accepted medical opinion, applicable studies and literature, and evidence from the record, to include more than the absence of evidence, for all conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Note: Despite its request for development that includes "due consideration" of the Veteran's lay evidence, in accordance with 38 U.S.C. § 1154(a) and 38 C.F.R. §§ 3.303(a) and 3.307(b), the Board emphasizes that it is not making a determination regarding the credibility of the Veteran or his statements at this time.

If any of the requested responses cannot be made without resorting to speculation, the examiner must state as much and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.

 

 

DUSTIN L. WARE

Veterans Law Judge

Board