Citation Nr: 21077126 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-16 919A DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that Veteran's bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1969 to December 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. In January 2019 and August 2021, the Board remanded the appeal to the RO for additional development. On November 6, 2019, the Veteran's counsel attempted to withdraw representation. Counsel is required to show good cause because the request was made after the December 2017 original certification of the appeal. 38 C.F.R. § 20.6(a)(2); Williams v. Wilkie, 32 Vet. App. 46, 52 (2019) (noting that "certification occurs only once and an appeal is not recertified each time it returns to the Board"). Counsel has not provided good cause for the withdrawal and was provided notice of the November 2021 docketing letter. The Board continues to recognize Counsel as noted above in the caption as the Veteran's representative. Entitlement to service connection for bilateral hearing loss. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Certain chronic diseases, including organic diseases of the nervous system such as hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, if they manifested to a compensable degree within a presumptive period following separation from service, or if they were noted in service or within an applicable presumptive period with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, there are no notations of hearing loss in the Veteran's service treatment records (STRs), including upon entry and at separation. The Veteran's May 1969 enlistment report of medical examination noted on clinical evaluation that his ears and drums were normal. The examiner also noted in the May 1969 report of medical history that the Veteran's ear, nose, and throat had no problems. The Veteran's December 1971 separation examination used the Whisper Test and noted the Veteran scored 15/15 in both ears. The Veteran's December 1971 separation examination also noted on clinical evaluation that his ears and drums were normal. See September 1972 STR Medical. Post-service, the initial report of diminished hearing was in August 1999. Specifically, the provider noted the Veteran's complaint of sore throat for one week without relief, difficulty swallowing, and diminished hearing since the sore throat onset. See March 2018 CAPRI. Thereafter, the Veteran submitted his current service connection claim for hearing loss in September 2014. See September 2014 VA 21-526EZ, Fully Developed Claim (Compensation). The Veteran was initially provided a VA examination in April 2015. However, the examiner noted that hearing test results were inconsistent and there was poor interest reliability. Thus, the examiner noted the test results were considered invalid and unreliable and therefore were not reported. See April 2015 C&P Exam. In January 2016 and April 2016, the Veteran reported that during active service, he was exposed daily to artillery fire for more than six months. He stated he worked in the fire direction control bunker and that the concussions from the artillery shells firing affected his hearing. See January 2016 NOD and April 2016 VA 21-4138 Statement In Support of Claim. The Veteran was provided another VA examination in April 2019. The examiner noted that the test results were inconsistent and did not appear to reflect the Veteran's maximal effort. There was poor interest reliability across the examination. Thus, the test results were considered invalid and unreliable and it was not indicated if the Veteran had hearing loss or not. See April 2019 C&P Exam. In a January 2021 VA examination, the Veteran's pure tone thresholds were measured as follows in decibels (dB): HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 35 55 55 LEFT 25 25 35 45 60 The examiner noted the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The examiner noted the Veteran was difficult to test, was minimally cooperative, both in the interview and in the audiometric tasks. The examiner noted the test was lengthy because it was necessary to repeat all subtests multiple times and necessary to counsel the Veteran to respond to every audible stimulus. The examiner noted that initial responses represented clear attempt to over represent the degree of impairment, as the Veteran was able to respond to her questions in the interview even when her head was turned and her voice lowered. However, the Veteran would not respond to pure tones less than 70 dB. The examiner indicated that levels posted represent "admitted thresholds" that are minimal, and his actual sensitivity may be even better. He was noted as consistent at these levels and that his performance on word recognition testing represents the influence of factors other than organic hearing loss. The examiner noted his performance on bone conduction testing, the final task in the long session, should not be considered valid, as, once again he would not respond to stimuli below 70 dB. After examination, the examiner noted the Veteran's hearing was normal when he entered military service, that he was tested in 1971 shortly before he separated, but the tool used to evaluate him was the Whisper Test, now considered to be both an unreliable as well as invalid measure of hearing sensitivity. Therefore, the examiner found there was no objective evidence of a standard threshold shift (STS). The examiner noted the Veteran's military occupational specialty (MOS) of clerk typist has a low probability of hazardous noise exposure and indicated after military service, the Veteran worked in cardboard box plant, and in plant manufacturing plastic parts. With the evidence available combined with his test behavior indicating over representation of impairment, the examiner opined that it is less likely than not that the Veteran's hearing impairment is due to events in military service. Upon finding the Veteran's exposure to military acoustic trauma was previously substantiated, the August 2021 Board decision determined the 2021 VA opinion as inadequate and remanded for another VA opinion. The Board remand directives indicated the subsequent VA opinion must consider the December 1971 separation medical examination report which no audiometer readings were provided, the August 1999 VA treatment record reflecting the Veteran's report of trouble hearing, and the January 2021 VA audiogram that revealed bilateral hearing loss for VA purposes. See August 2021 BVA Decision. In a September 2021 VA addendum opinion, the examiner re-reviewed the records provided and had taken the advisory notice that the VA has substantiated the Veteran's exposure to military acoustic trauma into account of the opinion. The examiner noted that there were reports of two hearing examinations performed during the period of his active service. One of these was a pure tone audiogram that is dated 1969 and showed normal hearing at the time he enlisted. The second exam is dated 1971 but consisted only of the Whisper Test, now considered to be both an invalid as well as unreliable measure of hearing sensitivity. The examiner noted that hearing loss was not even mentioned until 30 years after the start of service in 1999. She tested the Veteran in January 2021 and found both ears to have mild moderate hearing loss, and indicated that he was only minimally cooperative and that his test behavior indicated an attempt to over represent the degree of impairment. The examiner reiterated that he was a clerk/typist associated with a field artillery unit in Vietnam and that the record was silent for complaints of hearing loss and tinnitus. The examiner reiterated that in the January 2021 VA examination, the Veteran admitted to post-service noise exposure while doing factory work in a corrugated box factory and in a factory that was manufacturing plastic parts. The examiner noted the Veteran's reports that he thought he might have hearing loss, but he could not tell if it was in both ears or just one. The examiner noted the Veteran's initial responses to pure tones were grossly inflated and it was necessary to perform as many as five trials, with improvement of his "admitted" thresholds each time, until arriving at the levels finally reported, which the examiner determined were still a very weak agreement between SRT and PTA, suggesting over representation of degree of impairment. The examiner noted his responses on word recognition testing were often rhyming words, a behavior often seen in those seeking to exaggerate degree of actual impairment. Ultimately, the examiner opined that the Veteran's hearing loss is less likely than not a result of military service. See September 2021 C&P Exam. As the record currently stands, the weight of the evidence is against a finding that the Veteran's bilateral hearing loss is related to his service. As indicated in the August 2021 Board decision, the Veteran currently has bilateral hearing loss for VA purposes, and reports of military noise exposure are conceded. However, the presence of military noise exposure and a current diagnosis of hearing loss alone are not sufficient to establish service connection. Rather it must be shown that the military noise exposure caused the hearing loss. Here, the weight of the evidence is not sufficient to demonstrate that a medical nexus exists between the Veteran's current bilateral hearing loss and an in-service incurrence, and the Veteran's bilateral hearing loss is not shown to have started within a year of separation. The Veteran's treatment records are silent for reports of hearing loss. The Veteran's ears were clinically evaluated as normal upon separation from service in the December 1971 report of medical examination and there is no record of any hearing problems for multiple decades after service during which time the Veteran acknowledged that was exposed to noise exposure. The earliest audiogram of record indicating bilateral hearing loss occurred during a 2021 VA examination, and the earliest report, of record, of hearing impairment did not occur until 1999, decades after separation from service, of which was not specifically determined as related to hearing loss. Instead, the August 1999 VA treatment record related the decreased hearing to symptoms of sore throat and trouble swallowing, and that the diminished hearing had its onset one week prior with the sore throat. Finally, a September 2021 VA medical opinion indicated that the Veteran's bilateral hearing loss was less likely than not related to his period of service. The Board finds this opinion credible and affords it great weight, because it is based on sufficient facts and data applied to reliable principles and methods. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, (2008). Therefore, the weight of the evidence is not sufficient to demonstrate a medical nexus between and in-service incurrence and the Veteran's bilateral hearing loss. Finally, the Board notes that the record does not contain a diagnosis of bilateral hearing loss within one year of service. The Board notes that the lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Although the September 2021 VA examiner's opinion was based, in part, on hearing acuity being clinically normal when the Veteran separated from service, such does not render the opinion inadequate because the examiner also discussed the Veteran's lay statements and reviewed and thoroughly discussed the available evidence. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (medical opinion is adequate if it takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Moreover, as discussed by the September 2021 VA examiner, there was also evidence of an intercurrent cause in the form of post-service occupational noise exposure. The Board finds that the VA examiner's opinion is entitled to substantial probative weight. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Veteran believes his bilateral hearing loss is related to an in-service injury, event, or disease. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board also has considered the 2015, 2019, and 2021 VA examiners' reports of the Veteran's poor interest and test reliability and inconsistent test results suggesting attempts to over represent the degree of hearing impairment. As such, the Veteran's contentions are of little probative value and the VA examiner's opinion being supported by the evidence of record, medical rationale, and sound service connection principles is thus of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the weight of the probative evidence of record is not sufficient to demonstrate that the criteria for service connection have been met. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such entitlement to service connection for bilateral hearing loss is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.