Citation Nr: 21077566 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-21 155 DATE: December 30, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability as defined by VA law and regulations. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 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 in the U.S. Army from July 1980 to December 1981. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in February 2019 and remanded this issue for further development including scheduling a VA examination. The case has returned to the Board for further appellate review. The Veteran appointed a state representative after the appeal was transferred to the Board. However, the state representative was copied on the Board's January 20201 letter granting a 90-day extension to submit evidence. The Board finds that the representative had adequate notice that the Veteran had an appeal. REFERRED The Board notes that in a November 2020 statement, the Veteran addressed the issues of service connection for diverticulosis, hemorrhoids, kidney stones and lumbar arthritis with DDD that were denied in a December 2018 rating decision. The Veteran filed a NOD in January 2019 and a statement of the case (SOC) was issued in February 2020; however, the Veteran did submit a substantive appeal (Form 9). As such, the issues addressed in that SOC are not before the Board. The Board also notes that the Veteran has requested several times that he be afforded an extension for filing a substantive appeal for the issues addressed in the February 2020 SOC. The record does not reflect that the Agency of Original Jurisdiction (AOJ) has responded to that request. This matter is referred to the AOF for appropriate action. Service Connection Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, the presumption of service connection set forth in 38 C.F.R. § 3.303(b) attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a), including hearing loss and tinnitus. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease, including sensorineural hearing loss, to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology may also be demonstrated to establish service connection for diseases recognized as chronic for VA purposes. See Walker, 708 F.3d at 1338-1339. The determination of whether a veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385, which provides that, for the purposes of applying the laws administered by VA, impaired hearing will be considered a disability only where one of the following is established: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing ranges between zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. A veteran may establish direct service connection for a hearing disability that initially manifests several years after separation if the evidence of record demonstrates a causal relationship between the veteran's current hearing disability and the injury or disease suffered in service. See id. at 164; see also 38 C.F.R. § 3.303(d). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has a bilateral hearing loss disability that was caused by his in-service exposure to acoustic trauma. In this case, the evidence demonstrates no disability under 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in May 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 15 15 50 25 LEFT CNT CNT CNT CNT Void The examiner could not produce reliable pure tone results for the left ear even after reinstruction. The examiner reported a speech discrimination score on the Maryland CNC of 68 percent in the right ear and 66 percent in the left ear. However, he noted that "use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate." The word recognition scores were not valid, and it was suspected that poor word recognition may be attributable to other documented diagnoses, to include autism, developmental delay, and speech delay. In addition, the examiner reported the Veteran provided many responses that were not real words. In the remarks subsection of the report, the examiner wrote that there was poor reliability between multiple tests performed on examination. The examiner noted a positive Stenger's result, poor agreement between air and bone conduction thresholds, poor agreement between speech recognition threshold and pure tone threshold, and poor agreement between thresholds provided and otoacoustic emissions testing. In correspondence submitted with the April 2017 VA Form 9, the Veteran stated that the May 2016 VA examiner incorrectly attributed to the Veteran his son's autism, developmental delay, and speech delay. He requested another exam. The Veteran underwent another VA audiology examination in August 2020. The audiology report does not indicate an auditory threshold of 40 decibels in a frequency between 500 and 4000 Hz for either ear, does not indicate auditory thresholds of at least 26 decibels in at least three of the frequencies between 500 and 4000 Hz for either ear, and does not indicate speech recognition less than 94 percent for either ear. See 38 C.F.R. § 3.385. The examiner noted that initially pure tone testing was not reliable, but when the Veteran was re-instructed on the need to obtain accurate test results his reliability improved. She also noted that initially speech recognition testing results were very inconsistent, but that the Veteran performed "significantly better" once the presentation speed was slowed. The examiner stated that "this is not a reflection on the veteran's ability to hear, but rather may indicate attention, non-organic hearing loss, or cognitive difficulty." She acknowledged the instruction that the Veteran does not have autism but noted that the Veteran reported to her that he did have autism and offered this as a reason for his difficulty with the exam. The examiner found that the audiogram results were accurate and reliable. She explained: The exam is normed for special needs, and the instructions are normed on children ages five and older. There is no evidence or literature to support that the pure tone audiometery would be impacted by assessing an individual with mild cognitive difficulty (a diagnoses provided verbally solely per veteran) using adequate timing and pauses to allow for processing. It should be further noted the veteran arrived at the visit today without assistance, filled out both questionnaires thoroughly and without difficulty, and was able to answer history questions without difficulty, indicating grossly normal function." The Veteran contends that the August 2020 VA examiner diagnosed bilateral hearing loss. The audiologist checked the box indicating "sensorineural hearing loss (in frequency range of 6000 Hz or higher frequencies)" for the right ear and checked the box indicating "sensorineural hearing loss (in frequency range of 500-4000 Hz)" for the left ear. It appears the audiologist checked the wrong box with for the left ear. The audiogram findings are reported in two different places and do not show hearing loss for VA purposes. Specifically, all thresholds in the relevant frequencies are below 40 decibels and 96 percent speech recognition, bilaterally. The Board finds that the audiological results of the May 2016 VA examination are invalid and gives the opinion no probative value. The Board finds the August 2020 examination to be adequate and gives it probative weight. Both examiners noted problems with testing. However, the August 2020 examiner was able to obtain reliable results and offered a detailed explanation to support this finding, and that explanation addressed any cognitive issues that the Veteran might have. The May 2016 examiner was not able to produce reliable results. The Board acknowledges the November 2018 private provider's diagnosis of bilateral hearing deficits; however, there's no indication that the diagnosis was the result of any audiometric testing. The Board acknowledges that the Veteran was exposed to acoustic trauma while serving, as he described in his statements of record. He is currently service connected for tinnitus. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In assessing whether the Veteran has current bilateral hearing loss, the Board has considered his lay assertions. His statements have evidentiary value inasmuch as he is competent to report what he senses, such as diminished hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the issue of whether the Veteran has bilateral hearing loss disability for VA purposes concerns internal pathology beyond a lay witness' capacity to sense. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the lay evidence is of little probative value in light of the medical evidence before the Board, which consists of a valid VA audiology examination report and private treatment records which do not show a bilateral hearing loss disability under VA guidelines. As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss disability, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.10. REBECCA N. POULSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Romero-Sanchez, Emma J. 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.