Citation Nr: 21003945 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-03 587A DATE: January 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most competent and credible evidence of record does not demonstrate that the Veteran suffers from hearing loss for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1112, 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 honorably in the United States Army from September 1983 through July 1987, to include more than two years of foreign service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board previously in March 2017 and March 2019. The March 2017 Board decision remanded the matter in order to schedule the Veteran for a hearing before a member of the Board. In January 2018, the Veteran testified at a video conference hearing before Veterans Law Judge Parakkal. A transcript of the hearing has been associated with the claims file. In March 2019, the Board reopened the previously denied issue of entitlement to service connection for bilateral hearing loss, and it remanded the matter for additional development. In October 2020, the Veteran testified at a virtual hearing before Veterans Law Judge Deichert. A transcript of the hearing has been associated with the claims file. The Veteran’s representative was not present for the hearing, but the Veteran waived his representative’s presence. A Veterans Law Judge who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. By law, appeals may be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102 (a). Thus, when a Veteran has had a hearing before two separate Veterans Law Judges covering one or more of the same claims on appeal, a third Veterans Law Judge is assigned to participate in a panel decision with respect to those claims. Here, two Veterans Law Judges have taken testimony regarding the Veteran’s claim for bilateral hearing loss in January 2018 and October 2020. Accordingly, a third Veterans Law Judge has been assigned to participate in a panel decision in this case. The Veteran was offered the opportunity to testify at another hearing before the third VLJ on this issue. Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 C.F.R. § 20.707. At the October 2020 hearing, the Veteran was advised he had the right to an additional Board hearing, or he could waive this right. The Veteran testified that he did not want a third hearing. With respect to the prior remands, the Board finds substantial compliance with its directives. The first remand in March 2017 directed that the Veteran be scheduled for a hearing before a member of the Board. That first hearing was held in January 2018, so that directive has been met. The March 2019 remand directed that updated VA treatment records be obtained, that the Veteran be given the opportunity to submit (or to allow VA to obtain) any private treatment records regarding the Veteran’s hearing loss, and that the Veteran undergo a new VA examination. Since that remand, additional VA treatment records were obtained and associated with the claims file. The Veteran was invited to submit additional private records in a June 2019 letter; the Veteran did not submit any outside medical records, and noted at his recent hearing that all of his treatment for hearing loss had been through the VA. Finally, the Veteran underwent a new VA examination in January 2020 and, as described below, the examiner addressed the specific questions posed by the Board in its remand. As a result, the Board finds substantial compliance with its previous instructions such that the case may move forward. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss is denied. To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (including sensorineural hearing loss) may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence, and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered 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. 38 C.F.R. § 3.385. Furthermore, clinical hearing loss is shown where the auditory thresholds exceed 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159. The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson, 581 F.3d at 1316. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. The Veteran contends he was exposed to hazardous noise in service that caused his current hearing loss disability. He contends he has had hearing problems since service. As to the question of whether the Veteran suffers from hearing loss, there are three VA examinations performed either during or in close proximity to this claim for analysis. First, the Veteran underwent a VA examination in February 2009. Objective testing revealed puretone thresholds and speech discrimination scores as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 25 20 5 10 10 98 LEFT 20 15 15 25 20 100 Hearing loss for VA purposes was thus not shown at this examination. The Veteran did not have a hearing loss of 40 decibels at any frequency in either ear, he did not have three frequencies at 26 decibels or greater in either ear, and his speech recognition scores were at 94 percent or greater. Next, the Veteran underwent a VA examination in April 2011. Objective testing revealed puretone thresholds and speech discrimination scores as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 40 35 25 30 30 96 LEFT 40 35 30 35 35 96 While the results of this examination do reveal hearing loss for VA purposes (as the Veteran had decibel losses of 40 in each ear and losses above 26 decibels at three frequencies), the examiner cautioned that the puretone results were not adequate for rating purposes. The examiner noted that there was poor inter-test consistency between the puretone thresholds and the speech recognition testing, and that the threshold measured 15-20 decibels higher than the results of objective testing performed in February 2009. Most recently, the Veteran underwent a VA examination in January 2020. Results from that examination are as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 35 25 25 25 25 100 LEFT 35 30 25 25 25 100 This examination thus did not reflect bilateral hearing loss for VA purposes, as the Veteran did not have a decibel loss of 40 or greater in either ear, he did not have three thresholds above 26 decibels in either ear, and his speech recognition scores were 100 percent bilaterally. There is no other competent evidence of objective testing in the Veteran’s VA treatment records or in any of the private treatment records that have been obtained. Based on these examinations, the Board cannot conclude that the Veteran has suffered from hearing loss for VA purposes at any time during the appeal or in close proximity thereto. Again, both the February 2009 and the January 2020 examinations did not demonstrate hearing that had diminished to the point to be considered a disability for VA purposes. While the April 2011 examination did demonstrate such results, the examiner clearly cautioned that such results were not adequate for rating purposes, stating that there was poor reliability between the puretone thresholds recorded and the speech recognition scores, as well as between the contemporaneous results and the results of testing performed only two years before. Accordingly, the Board does not find the results of the April 2011 examination to be credible, and they do not demonstrate hearing loss for VA purposes. Importantly, in its previous remand, the Board found the April 2011 examination to be inadequate. While the Board accepted the results for purposes of reopening (presuming the credibility of the results pursuant to governing law), the Board did not explicitly find that the Veteran suffered from bilateral hearing loss at that time. Thus, in this decision, the Board is not reversing or disregarding any previous favorable finding of fact as to whether the Veteran suffers from a current disability. Even if the Board were to accept the findings of the April 2011 examination to be credible, the weight of the evidence would still be against the claim at this time, as the competent evidence of record does not demonstrate that the Veteran’s hearing loss is related to his active service. As noted, the Board has previously found the April 2011 examination and opinion to be inadequate, and the Board sought an additional opinion to determine whether the Veteran’s claimed hearing loss could be related to his active service. In her January 2020 opinion, the VA examiner determined that it is less likely than not that the Veteran’s claimed hearing loss is related to his active service. The VA examiner noted the Veteran’s hearing was within normal limits bilaterally at induction to service in his report of medical history at enlistment dated January 1982. The VA examiner also stated the Veteran’s bilateral hearing loss was within normal limits at the February 2009 VA examination. The VA examiner referenced the fact the Veteran had documentation of hearing within normal limits so many years post-service at the 2009 VA examination. The VA examiner also noted there was no documentation or evidence reflecting OSHA defined standard threshold shift during service. Additionally, the VA examiner concluded the Veteran’s bilateral hearing loss did not begin in service and did not ot manifest within one year after discharged from service as evidenced by bilateral hearing loss within normal limits in 2009. The VA examiner noted there was no documentation of complaints of hearing loss in service. The VA examiner stated hearing loss is a progressive condition as related to aging. However, the VA examiner noted that with hearing loss caused by noxious noise, the hearing loss would occur at the time of injury (the noise exposure) and the VA examiner stated there is no evidence to suggest a delayed onset of noise induced hearing loss as it related to the Veteran’s bilateral hearing loss. The VA examiner stated that with documentation of hearing within normal limits 22 years post military service and the minimal decline in hearing over the past 10 years, the VA examiner concluded it is likely the Veteran’s hearing loss is related to aging and not military noise exposure. The VA examiner concluded the Veteran’s bilateral hearing loss is less likely than not related to his military service. The January 2020 VA examination is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and the Veteran’s lay statements. Furthermore, the January 2020 VA examiner provided a complete and thorough rationale in support of her opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s contentions regarding his in-service noise exposure. Indeed, it was based on that exposure that the Board previously granted service connection for the Veteran’s tinnitus. While that exposure is sufficient to find evidence of an in-service incurrence, the most probative, competent, and credible evidence of record fails to show that the Veteran currently suffers from hearing loss for VA purposes. The Board also acknowledges the Veteran’s contentions regarding his current difficulties hearing, including a difficulty understanding speech and having to keep the television at a loud volume. The determination of whether hearing loss is present for VA purposes is dependent on objective testing showing that the VA standards have been met, and those results do not show hearing loss to be considered a disability pursuant to applicable VA regulations. None of this is to say that a future claim for service connection would not be successful; instead, in applying the laws and regulations governing VA benefits, the Board simply finds at this point that the Veteran’s hearing has not deteriorated to a point to be considered a disability. (Continued on next page) As such, the preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved; and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals K. Parakkal Veterans Law Judge Board of Veterans’ Appeals D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.