Citation Nr: 20026064 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-19 037 DATE: April 15, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT The preponderance of the evidence is against a finding of bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to March 1990 and from March 1992 to June 2013, with additional service in the National Guard. The Veteran testified at a January 2018 video conference before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. In June 2018, the Board remanded this case to the RO for additional development to include a new VA hearing loss examination. It has now returned to the Board for appellate review. During the pendency of this appeal, the Veteran hired an attorney to represent his claim before the Board. In July 2019, the Veteran’s attorney submitted a Notice of Disagreement (NOD) with all issues decided within the past year and a request for review by a Decision Review Officer. The Board notes the only rating decision within the timeframe specified by the Veteran’s attorney was a May 2019 rating decision that denied service connection for obstructive sleep apnea. At the same time, the Veteran’s attorney filed a VA Form 9 Formal Appeal “to protect the claimant’s rights while the new representative obtains a copy of the claims file and other pertinent documents and evidence” and requested a Board hearing by video conference. The request for a hearing is not specific as to the issue implicated. The Board will therefore address the July 2019 hearing request as if it is a request for a second hearing on the issue of service connection for hearing loss. The Board notes that all the relevant regulatory provisions clearly and plainly discuss the Veteran’s right to a hearing. See, e.g., 38 C.F.R. §§ 3.3103(c), 20.700, 20.702, 20.703, 20.1304. As noted above, the Veteran had a Board hearing in January 2018. Other than situations in which hearings have already been conducted before more than one VLJ, there is nothing in the statutory framework, regulatory provisions, or case law related to hearings that requires multiple hearings before the Board in connection with a claim. See 38 C.F.R. §§ 3.103(c), 20.700-20.717; see also 38 U.S.C. § 7107. The Board noted that the Veteran is not entitled to more than one Board hearing as a matter of right, unless specific exceptions apply, which are not shown here. For example, if a Board decision has been appealed to the Court and is then returned to VA from the Court, another hearing could be requested at that time. A second hearing could also be requested if the VLJ that conducted the first hearing was no longer available to decide the case. Neither of those scenarios are present here. The Board will treat the request as a motion for an additional hearing. A motion requesting relief from the usual rules regarding hearing requests, such as the request for a second Board hearing, must be accompanied by an explanation of the justification for the request. The Veteran’s attorney did not indicate why a second Board hearing was necessary, merely stating the appeal is protect the Veteran’s rights pending receipt of the claims file and evidence. The record reflects that the Veteran already provided testimony on this particular matter and has had ample opportunity to submit evidence and argument subsequent to the hearing. The desire to provide additional testimony alone does not constitute good cause for another Board hearing. As discussed above, a hearing transcript is of record. This is not a situation where a second hearing is needed before a panel member; rather, the same VLJ who presided over the most recent hearing remains available to decide his appeal. Because the Veteran has not provided good cause supporting his request for a second Board hearing on this matter, an additional hearing will not be afforded. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Chronic diseases, namely those listed in 38 C.F.R. § 3.309(a), benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a), to include sensorineural hearing loss. 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 Hz is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 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. 38 C.F.R. § 3.385. The Veteran filed his original claim for left ear hearing loss while still on active duty via a July 2012 VA 21-0819 VA/DoD Joint Disability Evaluation Board Claims Form. The Veteran was afforded an August 2012 VA audio examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 15 10 LEFT 15 5 20 25 15 Speech recognition scores were 100 percent in both ears. The VA examiner found the Veteran's pure tone audiometry revealed normal to borderline-normal hearing thresholds bilaterally. Speech discrimination scores were excellent in each ear. Following the June 2018 Board remand, the Veteran was afforded a new VA hearing loss and tinnitus examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 15 20 10 LEFT 0 5 15 25 20 Speech recognition scores were 100 percent in both ears. The VA examiner noted normal hearing in the right ear and high frequency (6000 Hertz or higher) hearing loss in the left ear. However, the examiner noted that there was no permanent positive threshold shift between 500 and 6000 Hertz. The examiner found normal hearing sensitivity for VA purposes, with excellent word recognition abilities in both ears. In addition, there were no objective findings to support a diagnosis of the claimed condition of “bilateral hearing loss.” The examiner concluded that findings do not support the level of severity suggested by complaints. The Board also thoroughly reviewed the Veteran’s service treatment records (STRs) and notes a July 2011 STR record with a complaint about hearing loss and a finding of mild left ear hearing loss with the recommendation to follow-up with audiology in 1 year. A separate July 2011 STR record notes that the Veteran underwent a bilateral ear irrigation procedure to remove wax buildup. The STRs also establish that the Veteran participated in a hearing conservation program. As a result, he was afforded multiple audiometric examinations throughout his active service. The Veteran underwent an entrance exam audiogram in February 1992, and his July 2012 separation audiogram did not show any worsening at any thresholds between 500-4000hz. The Board has identified two audiograms in results in January 2001 that would qualify for VA hearing loss in the left ear. The Board also identified seven audiogram results after January 2001 which would not establish a hearing loss disability under the laws administered by VA. See STRs dated August 2004, April 2006, April 2009, June 2009, June 2010, December 2010, December 2011. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is denied. In this case, none of the Veteran's VA treatment records establish hearing loss that meets VA's definition of a disability as per 38 C.F.R. § 3.385. As noted above, for hearing loss to be considered a disability, either the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94. Here, since the Veteran filed his claim for service connection, his auditory thresholds and speech recognition scores have not been shown to meet VA's definition of a disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131. In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of a bilateral hearing loss disability as defined by VA at any time during the appeal period. The Board has considered the Veteran’s lay contentions and notes that he is certainly competent to describe the symptoms of hearing loss, including difficulty hearing. See January 2018 hearing transcript. That having been said, he does not have the training or credentials needed to competently diagnose the nature of his right ear hearing loss or to opine as to its etiology. His lay contentions are thus of markedly lower probative value than the VA examiner’s opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At no time since the Veteran filed his claim for service connection for bilateral hearing loss in July 2012 has such disability as defined by VA been shown. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As such, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.