Citation Nr: 18156331 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-12 743 DATE: December 7, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing disability was not present during the Veteran’s active service, sensorineural hearing loss is not shown to have been manifest to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s current bilateral hearing loss disability is not related to his active service or any incident therein, including noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, inter alia, denied service connection for bilateral hearing loss. The Board notes that a video conference hearing was scheduled for October 2018. The record shows that the Veteran failed to report for this hearing. No explanation was provided for his failure to report and no motion for a new hearing date was filed within 15 days of the date of the scheduled hearing. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d). As set forth in more detail below, the Veteran has twice been afforded a VA examination for compensation purposes, but both examiners concluded that the test results were unreliable, given the Veteran’s inconsistent responses, failure to give maximal effort in the testing process, and refusal to cooperate with instructions. The examiners noted that the Veteran was reinstructed and restested several times without improvement. It was noted that there was poor agreement between the Veteran’s test performance and his observed communication ability. The Board therefore concludes that the lack of full cooperation and effort on the part of the Veteran is tantamount to a failure to report for those examinations because, although physically present, his lack of a genuine effort did not allow for the proper conduct of those examinations. Given the evidence of record, an examination was necessary to establish entitlement to the benefit sought. The record contains no indication that the Veteran had good cause for failing to cooperate in the examinations, such as a medical condition which prevented him from understanding the examiner’s instructions. Turk v. Peake, 21 Vet. App. 565, 569 (2008). Given the Veteran’s apparent willful failure to cooperate in the necessary examinations, which is tantamount to a failure to report without good cause, the regulation is quite clear; the claim shall be rated on the evidence of record. See 38 C.F.R. § 3.655 (2017). Entitlement to service connection for bilateral hearing loss is denied. The Veteran seek service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from personal injury suffered or a disease contracted in the line of duty from active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including sensorineural hearing loss (an organic disease of the nervous system), may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (1990). The Veteran contends that his bilateral hearing loss is due to miliary noise exposure, noting the onset of his hearing loss to be in 1998. See Veteran’s Application for Compensation and Pension dated March 2011. He reports that his military occupational specialty (MOS) was an artilleryman (cannoneer). The Veteran contends that his MOS exposed him regularly to high levels of military acoustic trauma. See November 2018 written argument. The Veteran’s service personnel records confirm that his military occupational specialty was cannoneer. He did not serve in combat and does not contend otherwise. Service treatment records (STRs) do not contain complaints or findings of hearing loss. An audiogram conducted in connection with the Veteran’s November 1969 induction examination showed tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) 0 (10) 0 (5) LEFT 5 (20) 0 (10) 0 (10) 0 (5) Note: It is unclear whether the audiometric thresholds from the November 1969 examination were recorded in American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. Given the date of the test, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. To facilitate data comparison for VA purposes, the original audiometric data, presumably recorded using ASA standards, has been converted to ISO-ANSI standards as reflected in the parentheses. After December 31, 1970, the Board assumes the ISO-ANSI standard was used. An audiogram conducted in connection with the Veteran’s January 1972 military separation medical examination recorded pure tone thresholds, in dB, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 LEFT 5 5 0 0 Clinical evaluation of the ears, including external canals and drums, was normal. In March 2011, the Veteran submitted a claim of service connection for bilateral hearing loss, which he indicated had begun in the Spring of 1998. VA outpatient treatment records obtained in connection with the Veteran’s claim are negative for findings of hearing loss. A January 2011 internal medicine note reported that the Veteran’s gross hearing was intact. See VAMC record from January 2011. In April 2013, the Veteran was afforded a VA examination in connection with his claim of service connection for bilateral hearing loss. The audiologist documented that there was poor intertest agreement and poor consistency in the Veteran’s responses. Additionally, there was poor agreement between test performance and the Veteran’s observed communication ability. It was noted that the Veteran had been reinstructed and retested “several times” without improvement. While the Veteran was pleasant in demeanor, it was noted that he failed to comply with test procedures. The audiologist concluded that the test results were considered invalid, and, therefore, not reported. In support of his claim, the Veteran submitted a private audiogram conducted in June 2013. The pure tone thresholds were reported in graph form. The U.S. Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). Here, the graph reflects that the Veteran’s pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 30 50 45 LEFT 20 10 35 65 60 Speech discrimination testing showed 100 percent correct in the right ear and 84 percent in the left ear. There is no indication that the speech discrimination test was performed using the Maryland CNC word list. No opinion on etiology of the bilateral hearing loss was provided in this record. In March 2015, the Veteran was afforded a second VA examination. The audiologist documented that although the Veteran was pleasant in demeanor, the test results were inconsistent and did not appear to reflect the Veteran’s maximal effort. It was noted that the Veteran had been reinstructed and encouraged throughout testing with no improvement in his admitted responses. Further, there was poor intertest reliability. The audiologist concluded that the test results were considered invalid and unreliable, and, therefore, were not reported. The examiner did provide an opinion on the etiology of the Veteran’s hearing loss. The audiologist noted, Review of the c-file revealed hearing sensitivity thresholds within normal limits bilaterally at entrance on 11/14/69 and at exit on 1/11/72. There were no threshold shifts between the two examinations. The literature on noise-induced hearing loss does not support the concept of delayed onset years following exposure to noise. Specifically, the Institute of Medicine’s 2006 report entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” addresses this issue. Therefore, given normal hearing bilaterally at entrance into and exit from the military in combination with the literature indicating there is no evidence to support noise-induced hearing loss developing years after exposure to noise, it is my opinion that the Veteran’s current hearing loss was not caused by or a result of noise exposure during military service. After applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. In general, in order to establish a right to compensation for a present disability, a Veteran 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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addressing the first element of a service connection claim, and affording him the benefit of the doubt, the Board finds that the Veteran currently has a bilateral hearing loss disability which meets the criteria set forth in section 3.385. As noted previously, the April 2013 and March 2015 VA examination results were considered invalid due to the Veteran’s failure to cooperate during the examinations, and, therefore, the results were not reported. Notwithstanding, the June 2013 private audiogram showed the Veteran’s pure tone thresholds for the 3000 and 4000 Hz frequencies for the right and left ear were greater than 40 dB. Therefore, the Board will assume for the sake of argument that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. With regard to the second element, also affording the Veteran the benefit of the doubt, the Board finds that the record contains evidence of in-service noise exposure. The Veteran has reported that his MOS exposed him regularly to high levels of military acoustic trauma. The Board notes that the Veteran’s personnel records confirm that he worked as a cannoneer, a position consistent with noise exposure. Thus, the Board will assume for the sake of argument that in-service noise exposure has been established. That an injury such as acoustic trauma occurred during service, however, is not enough to establish service connection. Rather, there must be chronic disability resulting from that injury. The record in this case does not contain any indication that the Veteran’s current hearing loss had its inception during active service and he does not contend otherwise. As set forth above, the service treatment records show that the Veteran’s hearing acuity was tested during active duty on two occasions. On both occasions, his thresholds were within normal limits, affirmatively indicating that a hearing loss disability was not present. Moreover, the Veteran himself has dated the onset of his decreased hearing acuity to 1998, well after service separation. The first notation of a hearing loss disability in the record on appeal is not until 2013. Although a hearing loss disability was not present during active service or manifest to a compensable degree within one year of separation, as set forth above, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the most probative evidence establishes that the Veteran’s current hearing loss disability is not causally related to in-service acoustic trauma. Although the Veteran contends that his hearing loss is due to in-service acoustic trauma, as a lay person, he lacks the competency to provide the needed opinions regarding the etiology of the hearing disability claimed here. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Board has assigned loe probative weight to the Veteran’s lay statements regarding the etiology of his hearing loss. On the other hand, the Board has assigned great probative weight to the March 2015 VA examiner’s opinion regarding whether or not any current hearing loss disability was related to service. Although the test results were considered invalid and, therefore, not reported, the audiologist concluded that it was less likely than not that the Veteran’s hearing loss was causally related to in-service noise exposure. The audiologist provided a clear rationale, citing to the relevant evidence of record and an IOM hearing loss study in her determination that the Veteran’s hearing loss was not caused by or a result of noise exposure during military service. There is no probative evidence of record which contradicts the examiner’s conclusions in this regard or otherwise suggests a nexus between the Veteran’s current hearing loss and his active service. Additionally, as set forth above, although the Veteran contends that his hearing loss is attributable to in-service acoustic trauma, the Veteran has not alleged continuity of symptomatology. The Board does not find that service connection is warranted based on continuity of symptomatology, as the Veteran’s hearing acuity was within the normal range at separation and he reported that his hearing loss did not begin until 1998. 38 C.F.R. § 3.303(b). The Board notes that service connection is also not warranted on a presumptive basis. As noted previously, the Veteran’s separation examination indicated that the Veteran’s hearing acuity was within the normal range. Moreover, the post-service record on appeal, both lay and clinical, contains no indication that a bilateral hearing loss disability was manifest to a compensable degree within one year of service separation. As a hearing loss disability was not present in-service or manifest to a compensable degree within one year of separation, service connection on that basis is not warranted. 38 C.F.R. § 3.307, 3.309(a). Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss and the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the claim for bilateral hearing loss is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel