Citation Nr: 21000659 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-34 009 DATE: January 5, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Hearing loss as defined by VA regulation has not been presented during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to August 1970, to include service in the Republic of Vietnam. In September 2019, the Veteran testified at a videoconference hearing before the undersigned. In October 2019, the Board remanded this case for additional development. 1. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (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. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Regional Office has already conceded the Veteran’s in-service exposure to noise trauma. See May 2014 rating decision (granting service connection for tinnitus based on such exposure). Accordingly, in-service noise trauma is established. 38 U.S.C. § 1154(a). However, there are no findings or diagnosis of hearing loss shown in service treatment records, including at separation examination. There is also no medical evidence suggesting that hearing loss was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no current hearing loss disability, according to the requirements of 38 C.F.R. § 3.385. The Veteran submitted his service connection claim in December 2013. He was provided a VA examination in May 2014. The VA examiner opined that the Veteran’s hearing loss was related to service, but the findings shown during that examination did not meet VA’s definition for a hearing loss disability under 38 C.F.R. § 3.385. Specifically, the May 2014 VA audiogram shows puretone thresholds of 15, 10, 25, 25, and 30 decibels in the right ear, at the test frequencies 500, 1000, 2000, 3000, and 4000 Hz. Puretone thresholds for the left ear at those same frequencies were 15, 10, 25, 25, and 35 decibels. The speech recognition scores were 94 percent for the left ear and 98 percent for the right ear. VA outpatient treatment records show that the Veteran was fitted for hearing aids in May 2019. At the time, he continued to have bilateral mild sloping to moderate - moderately severe hearing loss from 2000 to 8000 Hertz, with “excellent” speech discrimination scores of 96 percent in the right ear and 98 percent in the left ear. A September 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire notes that the examiner performed an audiological evaluation and reviewed the claims file. Examination revealed puretone thresholds in the both ears of CNT (could not test) at 500, 1000, 2000, 3,000, and 4000. Speech audiometry revealed speech recognition ability of CNT in the right ear and 94 percent in the left ear. The examiner reported that the test results were not valid, explaining that Veteran’s responses to the puretone stimuli were inconsistent with poor test/re-test reliability and not in agreement with the puretone averages. The use of a word recognition score was also indicated to be appropriate for the left ear, but not the right ear, in part due to inconsistent word recognition scores. In November 2020, the Veteran stated that he had no additional evidence to submit in support of his claim. Based on the evidence, as outlined above, the Veteran is not shown to have had a hearing loss disability (as defined by VA regulation) at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007) (stating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The medical evidence does not show that the Veteran has demonstrated a hearing loss disability pursuant to 38 C.F.R. § 3.385. Absent evidence of a present hearing loss disability, or at the very least a showing of this required disability at some point since the filing of this claim, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that in the absence of proof of a present disability, there can be no valid claim). While the Veteran is competent to report noise exposure and diminished hearing since service, difficulty hearing is not synonymous with a hearing loss disability for VA purposes, and he is not competent to diagnose hearing loss or to opine that it meets the criteria for qualification as a disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. Id. The Veteran’s representative has argued essentially that the September 2020 VA examination is inadequate because, in noting the May 2014 VA examiner’s opinion that the Veteran had bilateral sensorineural hearing loss, the September 2020 VA examiner stated that the 2014 results could not be verified. The 2020 examiner then stated that for this reason, no etiology opinion could be provided. See December 2020 Appellate Brief. The Board does not agree that the September 2020 VA examination is inadequate. While the 2014 examiner opined that the Veteran’s hearing loss was related to service, the examination findings did not show that this hearing loss was severe enough to meet VA’s definition for a hearing loss disability under 38 C.F.R. § 3.385. The 2020 examiner’s failure to provide a nexus opinion is immaterial here. What is needed is evidence of a current hearing loss disability according to the requirements of 38 C.F.R. § 3.385. As explained above, the objective evidence does not show this. The finding that the Veteran did not (currently and at any point during the appeal period) have hearing loss disability for VA purposes, rendered moot the necessity to provide an etiology opinion with specific rationale. Additionally, it is noted that the Veteran’s claim was remanded in October 2019 with the specific purpose of affording the Veteran a new VA examination to determine if his hearing had worsened since the 2014 examination and whether he might have a current diagnosis of a hearing loss disability. During the 2020 examination, the Veteran provided inconsistent responses resulting in an inability to test and ascertain the degree of hearing loss experienced by him. In the representative’s December 2020 Appellate Brief, it was suggested that the Veteran should also be provided a new VA examination on this basis. However, the Veteran was provided an opportunity to participate in a VA audiological evaluation already and there is no indication that the inability to obtain reliable test results was the fault of VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street). Thus, the VA examination reports are deemed adequate for rating purposes and remand for an additional examination is not necessary. Moreover, and notably, the Veteran has not submitted any medical evidence suggesting that he has hearing loss (by VA standards) related to service. The preponderance of the evidence is against the claim for service connection for hearing loss and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for PTSD The Board remanded the issue of entitlement to service connection for PTSD in October 2019, in pertinent part, for a VA examination to determine whether the Veteran has a current psychiatric disability related to service. According to an October 2020 Supplemental Statement of the Case, the Veteran was scheduled for a VA contract examination in January 2020; however, he failed to report for this examination. The Board notes that the examination notice letter is not in the record. In a December 2020 brief, the Veteran’s representative stated that the Veteran was not aware of any scheduled PTSD examinations; he received no mail or phone calls about such an appointment. Moreover, it was noted that the Veteran had a history of attending all scheduled appointments. In other words, the record evidence indicates that the Veteran may not have been notified of this examination. These circumstances provide sufficient good cause for his apparent failure to report for a VA examination. See 38 C.F.R. § 3.655. Thus, on remand, the Veteran should be scheduled for another examination. This matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination(s) to determine the nature and etiology of any acquired psychiatric disability present during the appeal period. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) The examiner should provide a diagnosis for any acquired psychiatric disorder. The examiner should specifically consider the diagnosis of PTSD which is noted in the Veteran’s 2019 hearing testimony and a September 2018 VA treatment record. b) If PTSD is found, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that PTSD had its onset during service or is otherwise related to service. c) For any other acquired psychiatric disorder found (other than alcohol abuse disorder), provide an opinion as to whether it as least as likely as not (50 percent probability or greater) had its onset during service or is otherwise related to service. d) If, and only if, the Veteran is found to have an acquired psychiatric disorder related to service and a diagnosis of alcohol abuse disorder is found, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that alcohol abuse disorder was caused or aggravated by his service-related acquired psychiatric disorder. “Aggravated” means any increase in severity that is beyond the normal progression of the disability or disease. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A copy of the VA examination notice letter should be included in the claims file if the Veteran fails to report for his examination. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.