Citation Nr: 21005901 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-05 517A DATE: February 2, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss is etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1979 to September 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing. This matter was previously before the Board in February 2020. However, the Board remanded the claim to afford the Veteran another VA examination to obtain an opinion addressing the etiology of his bilateral hearing loss. He was afforded that examination in March 2020 and his claim was again denied in an April 2020 supplemental statement of the case (SSOC). This matter is again before the Board for adjudication. 1. Bilateral hearing loss disability The Veteran contends his bilateral hearing loss disability is a result of serving as a cannon crewman in service which exposed him to noise from firing Howitzers. See June 2013 Notice of Disagreement and October 2019 Board Hearing. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as hearing loss, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Generally, for purposes of applying the laws administered by the VA, impaired hearing will only be considered an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2018). The Court in Hensley v. Brown has held that the threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. 5 Vet. App. 155, 157 (1993). Upon review of the evidence, the Board finds that the Veteran has a current bilateral hearing loss disability. As reflected in a May 2012 private audiology examination and September 2016 VA examination, the Veteran had hearing thresholds of 40 decibel (dB) or greater in the 2000, 3000, and 4000 frequencies bilaterally. As such, the Veteran has a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. With regards to an in-service incurrence, the Veteran’s hearing was not tested during his July 1979 enlistment examination. However, in a July 1979 report of medical history, the Veteran endorsed no hearing loss or use of hearing aids. Upon being discharged, he declined to undergo a separation examination. However, the Veteran has testified that he served as a cannon crewman in service and his DD-214 further reflects the he served in that capacity. While there are no in-service audiology results to be reviewed, in resolving all doubts in the Veteran’s favor, the Board concludes that his military occupational specialty as a cannon crewman likely exposed him to hazardous noise in service. Thus, the Board finds that the Veteran has an in-service event or injury. However, the Board finds that the preponderance of the evidence fails to establish a medical nexus between the Veteran’s bilateral hearing loss disability and his military service. Despite having been afforded multiple VA examinations in connection with his claim, the Veteran has consistently failed to cooperate in the examination process. Despite repeated attempts and reinstruction, an April 2013 VA examiner stated that his test results were not reliable or suitable for rating purposes and were not reported. The VA examiner explained that his test results were strongly suggestive of a non-organic hearing loss/hearing loss component. His speech reception threshold (SRTs) were in poor agreement with the pure tone auditory (PTAs) as the normal SRTs obtained were significantly better than expected given the elevated pure-tone thresholds obtained. Some of the air and bone conduction thresholds were in poor agreement. Additionally, his normal otoacoustic emissions (OAE) thresholds obtained were inconsistent with the elevated pure-tone thresholds obtained at corresponding frequencies. His normal acoustic reflex thresholds obtained bilaterally were also inconsistent with the elevated pure-tone thresholds obtained. Moreover, his reduced speech recognition scores were inconsistent with observed communication abilities. The VA examiner further noted his speech discrimination scores were not appropriate due to language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that makes combined use of puretone average and speech discrimination scores inappropriate. As such, the VA examiner stated that a medical opinion could not be provided without resorting to speculation due to unreliable and unsuitable results. Although a medical opinion was not provided, the VA examiner noted served in the military for a year. The VA examiner also noted that the Veteran reported working at a factory for over 18 years and also as a truck driver for over 18 years using hearing protection. His recreational activities included riding motorcycles without hearing protections. Under pertinent medical history relating to hearing loss, the VA examiner also noted the Veteran’s use of aspirin which is a potentially ototoxic medication. Similarly, a September 2016 VA examiner reported that the Veteran’s puretone thresholds and speech discrimination results could not be tested as it revealed poor inter-test reliability. The VA examiner noted the Veteran’s PTA in the right ear revealed a score of 35 dB compared to a SRT of 25 dB and the PTA in the left ear revealed a score of 40 dB compared to a SRT of 20 dB. The VA examiner stated that the PTA-SRT differences revealed questionable and/or poor agreement and that he had a positive Stenger test was obtained at 6000 Hz. Additionally, the VA examiner further noted that his hearing results of mild and moderate hearing loss and poor word recognition scores during the examination differed greatly from a VA hearing examination in March 2016. Again, despite repeated attempts and reinstructions, the VA examiner stated that the results were not reliable or suitable for rating purposes and did not report the results. As the Veteran malingered during the evaluation, the VA examiner could not resolve the Veteran’s hearing loss without resorting to mere speculation. In a February 2020 VA audiology note, the Veteran was seen for hearing aids and complained of difficulty hearing words even when wearing his current amplification. The audiologist noted that his previous tests varied between good and poor reliability. During testing, the audiologist noted that the Veteran initially did not respond when spoken to via headphones bilaterally at 65 dB. However, the audiologist explained that he should be able to hear as he was able to conduct a conversation in the booth. Results from this audiology testing showed that his OAE screening was in agreement with his puretone findings. More importantly, the audiologist noted that his result during the examination differed significantly from previous results although once reinstructed, the reliability of the results was good. The audiologist recommended that hearing aids at the time of the examination was not recommended as his hearing was essentially within normal limits with the exception of the 6000 – 8000 Hz dropping to moderate. As directed by the Board’s February 2020 remand, the Veteran was provided with another VA examination in March 2020. However, the VA examiner could not test his puretone thresholds or speech recognition. The VA examiner stated the SRTs were in poor agreement with the PTAs. His normal acoustic reflexes obtained were also inconsistent with the elevated pure-tone thresholds obtained, particularly on the left side. The VA examiner also noted that positive Stenger’s were obtained at the 1000, 2000, 3000, and 4000 Hz for the left ear. The VA examiner stated his speech and puretone results were inconsistent and in poor agreement with his recent February 6, 2020 VA OP audiogram in his VA treatment records. Similarly, his poor speech recognition scores were inconsistent with his observed communication abilities. With regards to other information pertaining to the Veteran’s hearing loss, the VA examiner noted the Veteran’s in-service noise exposure and his employment with a factory and as a truck driver for over 18 years. The VA examiner further noted that the Veteran takes aspirin, trazadone, and hydrochlorothiazide which are potentially ototoxic medications. Upon review of the medical evidence, the Board finds that there is no probative or persuasive evidence that the Veteran’s bilateral hearing loss is related to his service. Despite being provided with multiple VA examinations, the Veteran has not made the effort to cooperate as his audiology results have been consistently unreliable and unsuitable. He was further advised and reminded in the February 2020 Board remand that VA’s duty to assist was not a “one-way-street” and that he was to cooperate with the VA examiner. A review of the record further contains no indication that the Veteran had demonstrated or asserted good cause for failing to cooperate in the examinations, which were necessary to establish entitlement to the benefit sought. As such, the Board concludes that the lack of full cooperation and effort on the part of the Veteran is tantamount to a failure to report for the VA examinations. The Board has held the record open for the purpose of allowing the Veteran an opportunity to submit additional arguments or evidence. While a private audiological examination was received on June 2020, it did not include a medical opinion addressing the etiology of any bilateral hearing loss. Due to the Veteran’s lack of cooperation, there remains no evidence establishing a medical nexus between his current bilateral hearing loss disability to his service. Thus, the Board concludes that the third element to establish service connection for his claim has not been met. The Board has further considered whether the Veteran is entitled service connection on the basis of a chronic presumption. However, the Board finds that there is no evidence that his bilateral hearing loss disability manifested to a compensable degree within a year following service. The pertinent evidence does not demonstrate that he was diagnosed with hearing loss until a January 2013 private audiology examination, over 30 years after separation from service. Thus, the Board concludes that he is not entitled to service connection based on a chronic presumptive basis. The Board has considered the Veteran’s lay statements that his hearing loss disability is related to his in-service noise exposure as a cannon crewmember. The Board acknowledge that lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed, as well as to provide opinions on some medical issues, such as those perceived through the senses. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, here, the etiology of the Veteran’s asserted bilateral hearing loss is a complex medical matter that falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, based on the relevant VA examinations and VA treatment records discussed above, the Board does not find the Veteran’s to be credible. As such, the Board finds that his assertions do not provide persuasive evidence in support of his claim. Thus, after careful consideration of the available evidence of record, the Board finds that the preponderance of the evidence fails to show that the Veteran’s bilateral hearing loss disability is etiologically related to an in-service event, injury, or disease. As such, the benefit of the doubt doctrine is not for application and his service connection claim for a bilateral hearing loss disability must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.