Citation Nr: 21062702 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-19 056 DATE: October 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a comprehensive and/or cognitive auditory dysfunction condition secondary to exposure to jet fuel is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not etiologically related to active service. 2. The preponderance of the evidence of record is against finding a current diagnosis of comprehensive and/or cognitive auditory dysfunction condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for a comprehensive and/or cognitive auditory dysfunction condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1965 to March 1969. In May 2017, the Veteran testified at a Board hearing. The transcript is of record. In March 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Entitlement to service connection for bilateral hearing loss and entitlement to service connection for a comprehensive and/or cognitive auditory dysfunction condition secondary to exposure to jet fuel Impaired hearing is considered a disability for VA purposes 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. In March 2021 the Board remanded this case for a new VA examination due to inadequacies in the prior examinations. A VA examination was scheduled but cancelled by the Veteran, who requested that the order be held indefinitely as he is travelling and he will contact the VA when he is ready. To date, the Veteran has not requested to reschedule the VA examination. The duty to assist is a two-way street, which requires the Veteran's active participation in a claim for benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that the Veteran has not shown good cause for his failure to report to the VA examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Veteran attended a VA examination in December 2012 and reported difficulty understanding speech in noisy places. His puretone thresholds, in decibels and CNC results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 20 15 20 25 20 94 LEFT 15 15 20 25 19 92 The Veteran had sensorineural hearing loss in the frequency range of 6000 Hertz or higher bilaterally. The examiner opined that hearing loss was less likely as not caused by or a result of noise exposure in service as hearing tests at enlistment and discharge do not show hearing loss or injury with no significant threshold shift during service. The Veteran attended another VA examination in February 2018 and reported difficulty hearing and understanding speech in noisy places. His puretone thresholds in decibels and CNC results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 30 25 55 50 40 64 LEFT 15 10 30 25 20 78 The examiner opined that it was less likely than not hearing loss was caused by or a result of an event in the military as his hearing thresholds at entrance and separation were within normal limits and according to the American College of Occupational Medicine Noise and Hearing Conservation Committee "a noise induced hearing loss will not progress once it is stopped. The examiner noted that the Veteran showed signs of an auditory processing disorder in the right ear with speech discrimination scores lower than expected given his type and degree of hearing impairment. This condition may also be attributed to auditory neuropathy when amplification has been delayed or forgone long past the onset of clinical hearing loss. The Veteran also attended a VA examination for central nervous system and neuromuscular diseases. The Veteran reported having direct skin contact with jet fuel and exposure to fumes due to the lack of requirements for protective gear. He only disclosed experiencing mild intermittent left arm weakness. The examiner found no current diagnosis of a central nervous system condition and opined that it is less likely than not that the Veteran has a cognitive or comprehensive disorder to include an auditory processing dysfunction as the objective neurological examination was normal and the symptoms are only subjective. An addendum opinion obtained in May 2019 concluded that it was less likely than not that the Veteran has a diagnosis of auditory processing disorder. The examiner explained that the February 2018 audiological VA examiner relied on inconsistent speech scores rather than a diagnostic examination to conclude that the Veteran displayed signs of an auditory processing disorder. However, this is also, and more likely, evidence of either a non-organic component to hearing loss or an insufficient examination. Neither the 2012 examination, medical records or the service treatment records provide evidence of an auditory processing disorder. There is no significant permanent shift in hearing thresholds from enlistment to separation, which is objective evidence of no permanent auditory damage from in-service noise exposure. There are no reports of hearing loss at separation and no continuity of care for hearing loss after separation. The VA examiner also noted that the 2018 VA examination contains questionable thresholds that are inconsistent with the Veteran's ability to communicate with healthcare providers, his lack of audiological treatment, and the record revealing no other report of hearing loss other than his claim. Additionally, performance intensity function was not obtained, presentation was at one level and there was asymmetric hearing loss with no Stenger examination. The May 2019 VA examiner also opined that there is no diagnosis of a cognitive and/or comprehensive disorder as the February 2018 VA examiner's statement indicating such was speculative based on insufficient test results, which are also consistent with a non-organic component to hearing loss. Additionally, a diagnostic examination for auditory processing disorders has not been completed and therefore cannot be diagnosed. Thus, the examiner concluded that the 2018 VA examination is inadequate as a Stenger test was not completed, speech scores were only obtained at one present level with no performance intensity function performed, the results were inconsistent with normal progression of hearing loss from the 2012 examination, and the results are inconsistent with the Veteran's ability to communicate with healthcare providers and the lack of diagnosis or treatment for hearing loss. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Veteran testified before the Board in May 2017 at which time his exposure to acoustic trauma in service was conceded. The Veteran reported difficulty with understanding speech but not with hearing and expressed belief that this was due to exposure to JP-5, JP-8, and Jet A fuels in service. He testified that he did not have hearing loss prior to service and did not notice his hearing issues until after service. The Veteran's testimony was found competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In support of his claim, the Veteran provided an article "Jet Fuel Exposure Causes Hearing Loss??" from a blog conducted by a law firm specializing in disability and "Public Health Statement for JP-5, JP-8, and Jet A Fuels" from the agency for toxic substances and diseases registry, which have been considered. The Board concludes that the evidence is insufficient to establish a current diagnosis of a comprehensive and/or cognitive auditory dysfunction condition. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). To the extent that the Veteran alleges he has a comprehensive and/or cognitive auditory dysfunction condition, this allegation is without probative value as this is a complex medical question which requires specialized knowledge as well as pertinent testing to diagnose. As a lay person, the Veteran does not have the requisite knowledge to provide the diagnosis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). In the absence of proof of a present disability there can be no valid claim. Id. As such, the preponderance of the evidence is against the claim for service connection for a comprehensive and/or cognitive auditory dysfunction condition. Furthermore, while the evidence does establish a diagnosis of hearing loss based on the findings of the December 2012 and February 2018 VA examinations and in-service acoustic trauma is conceded, there is no competent and credible evidence establishing that the Veteran's diagnosis of hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). No medical professional has rendered a positive nexus opinion, and the Veteran failed to report for the examination expected to supply the relevant evidence. Accordingly, the claims for entitlement to service connection for bilateral hearing loss and comprehensive and/or cognitive auditory dysfunction condition are denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.