Citation Nr: 1751033 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-25 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service from March 1978 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2015, the Veteran presented sworn testimony at a video conference hearing chaired by the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board previously remanded this issue in July 2015 for further development. It has returned to the Board for adjudication. FINDING OF FACT The preponderance of the evidence fails to establish that the Veteran had a hearing loss disability for VA purposes at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 1131, 1112, 1113 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309, 3.383, 3.385 (2016). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION The matter was Remanded in July 2015 for the purpose of obtaining an addendum medical opinion. Such an opinion was obtained in December 2015. There has been substantial compliance with the Board's remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1131. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1112 , 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Sensorineural hearing loss is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability 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 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2016). The Veteran contends that he has hearing loss as a result of noise exposure during active service. He provided testimony describing his service as a supply clerk for a motor pool and the level of noise at his location. However, notwithstanding the Veteran's history of in-service noise exposure, which the Board finds credible, the evidence does not show that any hearing loss disability (as defined by 38 C.F.R. § 3.385) was diagnosed in service. At the November 2011 examination, the Veteran reported that he began noticing his hearing loss about ten years prior to the examination (2001) and he had trouble hearing people talking who were not looking directly at him. The examiner noted some hearing loss, but that there were some test inconsistencies with the Veteran's responses duing the hearing test. On the authorized audiological evaluation in November 2011, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 50 60 LEFT 20 15 50 55 60 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 in the left ear. The Veteran tested normal for Immittance. The examiner opined that the Veteran's hearing loss was less likely than not due to in-service noise exposure, citing the length of time between service separation in 1981 and complaints of hearing loss beginning in the early 2000's. At the December 2015 VA audiological evaluation, the Veteran reported that he feels his hearing loss started while in active service. He also stated that hearing loss did not affect him in his capacity as a police officer. The Veteran reported trouble hearing people talk to him if they are not facing him, as well as difficulty hearing from different floors of his house. The Veteran's December 2015 tested puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 20 LEFT 20 20 10 15 20 The examiner determined that speech discrimination testing was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that made combined use of puretone average and word recognition scores inappropriate. The examiner found normal hearing in the right ear. For the left ear, there was some sensorineural hearing loss in the frequency range of 6000 Hz or higher. The examiner stated that the Veteran's current hearing is within normal limits. He indicated that that the test results from the November 2011 exam, which he conducted, should be considered invalid due to functional hearing loss. He explained that the test reliability of 2011 examination had been "fair" due to test inconsistencies with the Veteran's responses during testing. The examiner opined that the current test results are all in good agreement and objective testing supports behavioral findings. The examiner further opined that with 100 percent certainty the Veteran's hearing loss is not caused by or a result of military noise exposure. The examiner explained the rationale for the opinion, in that the Veteran's in-service test results were normal, and the change in results from 1978 to 1980 were within normal variance standards, which is not indicative of a significant hearing threshold shift. In both VA audiological examination reports, the examiners acknowledged that service treatment records indicated that the Veteran's bilateral hearing was normal at entry, and that a second hearing test was conducted in April 1980, where there were some changes in the Veteran's test results;, however, these changes were within the standard variance and did not indicate a significant hearing threshold shift and were considered normal. The Veteran declined a medical examination at separation and his hearing was not further tested until the November 2011 VA examination. The totality of the evidence also fails to establish a post-service diagnosis of a hearing loss disability per 3.385 at any point since service. The Veteran has not presented or identified existing audiometric testing results that meet the requirements of that regulation. Consideration have been given to the findings of the 2011 VA examination, which documented hearing loss for VA purposes, and that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, the facts of the present case are distinguished from those of McClain. The evidence does not reflect that the Veteran had a hearing loss disability that resolved. Rather, as explained by the 2015 examiner, who had also conducted the 2011, the finding of hearing loss in 2011 was based on inconsistent and unreliable test responses. The examiner stated that the 2011 findings represented functional hearing loss, which is defined as non-organic hearing loss or hearing loss that involves a psychological, rather than physical damage to the hearing pathway. See https://medical-dictionary.thefreedictionary.com/functional+hearing+loss]. While not stated explicitly, the Board interprets to mean that the Veteran over-endorsed his test results in 2011 and that 2015 testing, which did not show hearing loss for VA purposes, represented his true level of dysfunction. The most probative evidence does not establish that the Veteran had a hearing loss disability for VA purposes at any point during the appeal period or proximate thereto. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, as the above summarized evidence does not establish the presence of a current, chronic hearing loss disability by VA standards at any time during the pendency of the appeal, service connection must be denied on this basis. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of current disability, there can be no valid claim of service connection). Full consideration has been given to the Veteran's assertions that he has bilateral hearing loss related to service. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence and etiology of a hearing loss disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss as it relates to meeting the requirements of 38 C.F.R. § 3.385 is not the type of condition that is readily amenable to mere lay diagnosis, as the evidence shows that audiometric and word recognition testing is needed. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the Veteran is competent to report diminished auditory acuity, there is no indication that he is competent to provide a diagnosis of sensorineural hearing loss for VA disability purposes, and nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The lay evidence does not constitute competent medical evidence and lacks probative value. ORDER Entitlement to service connection for bilateral hearing loss is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs