Citation Nr: 21065943 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-39 084 DATE: October 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence fails to probatively establish that the Veteran's current bilateral hearing loss is etiologically or presumptively related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the December 2019 VA Form 9, Substantive Appeal, the Veteran requested a Board videoconference hearing. In December 2020, the Veteran was notified of his opportunity to attend an optional Board virtual hearing scheduled for January 27, 2021. The Veteran was told that if he did not wish to attend the scheduled Board virtual hearing, he would retain his place in line for the scheduling of a Board videoconference hearing. The Veteran did not appear for the January 27, 2021 Board virtual hearing. In March 2021, the Veteran was notified of his opportunity to attend an optional Board virtual hearing scheduled for June 9, 2021. The Veteran was again told that if he did not wish to attend the scheduled Board virtual hearing, he would retain his place in line for the scheduling of a Board videoconference hearing. The Veteran did not appear for the June 9, 2021 Board virtual hearing. Finally, in July 2021, the Veteran was sent correspondence indicating that a Board videoconference hearing was scheduled for September 23, 2021. VA's Veteran Appeals Control and Locator System indicates that the Veteran did not appear for his scheduled September 23, 2021 Board videoconference hearing, he did not file a timely request for postponement, and he did not file a motion for a new hearing in the time allotted. See 38 C.F.R. § 20.603 (formerly 20.704). As such, the Board shall proceed as if the Veteran's hearing request has been withdrawn. Id. The undersigned Veterans Law Judge has been assigned to consider this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). Neither the Veteran nor his representative has raised any issues with VA's duty to notify or VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Entitlement to service connection for bilateral hearing loss is denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to a veteran's circumstances. The current disability element of a service connection claim is not in dispute. The results of the October 2018 VA examination demonstrate that the Veteran has experienced bilateral hearing loss for VA compensation purposes during the appellate period. See 38 C.F.R. § 3.385. Regarding in-service incurrence, the Veteran's service treatment records are negative for in-service hearing complaints. The Veteran's service treatment records contain no audiograms. At the March 1960 entrance examination, the Veteran's ears (internal and external canals) were clinically normal and only whispered voice testing was conducted, and the Veteran's hearing was recorded as 15/15 in both ears. The Veteran was seen in May 1961 due to right ear external otitis, but there was no allegation that the Veteran's hearing was impacted. At the March 1964 exit examination, the Veteran's ears (internal and external canals) were clinically normal and only whispered voice testing was conducted, and the Veteran's hearing was recorded as 15/15 in both ears. According to the Veteran's DD Form 214, his military occupational specialty was a wireman, which is consistent with low in-service noise exposure. However, the Veteran's DD Form 214 also indicates that the Veteran received the rifle sharpshooter badge. At the October 2018 VA examination, the Veteran reported that he was exposed to 81 mm mortars during service without hearing protection. Given this information addressing the Veteran's in-service experiences with weapons and artillery fire, the Board finds that the Veteran was exposed to acoustic trauma during his active duty service. In July 2018, the Veteran filed a claim seeking entitlement to service connection for bilateral hearing loss. The Veteran provided no lay statements setting forth specific contentions or argument as to why he believed he was entitled to service connection for bilateral hearing loss. To assist in the substantiation of the claim, the Veteran was afforded a VA examination in October 2018. Following a complete review of the electronic claims file and an in-person examination, the October 2018 VA examiner issued a negative nexus opinion declining to link the Veteran's current bilateral hearing loss to his active duty service. The VA examiner considered the Veteran's in-service noise exposure due to the shooting of mortars, as well as post-service occupational noise exposure as a mechanic and post-service recreational noise exposure from lawn equipment and hunting. In relevant part, the VA examiner explained: The [claims file] and [service medical records do] not contain any in-service frequency-specific audiograms. All physicals within the [service medical records] had only a whispered voice test, which is not valid as it is not frequency specific. In the absence of valid audiograms within the [service medical records], this examiner must rely on the Veteran's lay statement. According to the Veteran's lay testimony, the initial onset of hearing loss occurred around 5-6 years ago. When acoustic trauma occurs, the effect of that trauma on the auditory system is immediate or rapid in onset. Because the Veteran reported a later onset of hearing loss and was unable to provide a nexus between its onset and military service, the Veteran's current hearing loss is deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The Board finds the October 2018 VA medical opinion to be of significant probative value because it was fully articulated and supported by an explanatory rationale based on the record evidence, relevant medical principles, and the VA examiner's medical expertise as an audiologist. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Relying on the October 2018 VA medical opinion, the RO denied the claim in the October 2018 rating decision. In the November 2018 VA Form 21-0958, Notice of Disagreement, the Veteran argued that he did not mean to tell the VA examiner that his hearing loss began 5 to 6 years ago. Instead, he "was trying to convey...[that] his hearing problem started [in the] early to mid 60's and continued to get worse over the years, and in the past 5 to 6 years, it's gotten to where he can't hear anything." In the December 2019 Substantive Appeal, the Veteran altered his contention slightly, stating he "was trying to convey to the doctor that he had hearing loss in the mid 60's and [it] continued to get worse in the past 5 to 6 years...." In the Substantive Appeal, the Veteran eliminated the contention that his hearing loss began in the "early 60's" as alleged in the Notice of Disagreement. At issue is the veracity of the lay statements reported to the October 2018 VA examiner, versus later statements to the contrary rendered in the Notice of Disagreement and Substantive Appeal after the Veteran's claim had been denied in the October 2018 rating decision. In Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020), the United States Court of Appeals for Veterans Claims held that a VA examiner's role in compensation proceedings is to assess the medical feasibility of a veteran's lay statements. At the October 2018 VA examination, the Veteran was presented with a full and fair opportunity to set forth his contentions to the VA examiner as to why he believed his hearing loss was incurred in or is otherwise etiologically related to his active duty service. Given that he had provided no context for his claim prior to the October 2018 VA examination, the VA examination was an opportunity to fully explain the nature and onset of his claimed hearing loss symptoms. He had an opportunity to converse and engage with the VA examiner and accurately explain the proper medical history underlying his claim. Following the in-person examination, the VA examiner clearly and concisely documented that the Veteran told her that "the initial onset of [his] hearing loss occurred around 5-6 years ago." Following the initial denial of the claim, the Veteran attempted to alter and revise the lay reported history of symptoms he provided to the VA examiner. The Veteran did not allege any specific error on the part of the VA examiner; instead, he argued that at the October 2018 VA examination, he was trying to convey that his hearing loss began close in proximity to his active duty service, and significantly worsened in the last 5 to 6 years. This contention is drastically different than what was reported to and documented by the VA examiner. In assessing the probative value of this post-hoc rationale, the Board cannot disregard the fact that the Veteran did not begin explicitly attributing his hearing loss to service until after his claim had been initially denied by the RO. The Veteran had no incentive to mislead the VA examiner, as any lay statements proffered at the time of the VA examination could have been used to support a favorable nexus opinion. Yet, after the claim had been initially denied, the Veteran had an extreme financial incentive to revise any lay statements that did not support the claim, in an attempt to more easily secure VA service-connected compensation benefits. The timing of these post hoc revisions suggest the influence of interest and a desire for pecuniary gain. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). Thus, the Board affords greater weight to the Veteran's lay reports at the October 2018 VA examination, than later noncredible statements to the contrary, which were first rendered after the Veteran's claim had been initially denied by the RO. As such, the Board finds the Veteran's lay statements regarding in-service incurrence of bilateral hearing loss, with continuity of symptoms thereafter, to be lacking in credibility. In sum, the evidence fails to demonstrate that the Veteran's current bilateral hearing loss is etiologically related to his active duty service. The October 2018 VA medical opinion is highly probative and weighs against the claim. The Veteran's lay statements regarding in-service incurrence of hearing loss and continuity of symptoms thereafter have been determined to lack credibility based on the current evidentiary record. As the requisite elements of service connection have not been met, the Veteran's appeal seeking service connection for bilateral hearing loss must be denied under a direct service connection theory of entitlement. Bilateral sensorineural hearing loss is considered an "other organic disease[] of the nervous system" and is therefore included on the list of chronic diseases for which presumptive service connection may be considered under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2016); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013); 38 U.S.C. § 1112. In the present matter, the evidence fails to probatively demonstrate that the Veteran's bilateral hearing loss began during service, manifested to a compensable degree within one year of separation from active duty, or has been manifested by continuous symptoms since active duty. The Veteran passed a whispered voice test at the March 1964 exit examination. The Veteran never reported hearing complaints while in service and clinical examinations of the ears were normal at service discharge. The Veteran's reports of in-service incurrence of hearing loss with continuous symptoms thereafter have been deemed to lack credibility. Based on the foregoing, the Veteran is not entitled to presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) for bilateral hearing loss. On this basis, the claim is also denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.