Citation Nr: 21012678 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-26 282 DATE: March 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that a bilateral hearing loss disability has been present in either ear during the claim period. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 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 from July 1967 to July 1969. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned at a videoconference hearing in August 2019. A transcript is of record. Entitlement to service connection for bilateral hearing loss disability The Veteran contends, in effect, that he has current bilateral hearing loss due to hazardous noise exposure in service. The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Simply put, service connection is not warranted in the absence of proof of current disability. The current disability requirement may be satisfied by the presence of the claimed disability at any time during the claim period. Where a veteran served for at least 90 days during a period of war or on or after January 1, 1947, and manifests an organic disease of the nervous system, such as sensorineural hearing loss, to a degree of 10 percent within one year from the date of termination of such 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as sensorineural hearing loss, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). At the August 2019 hearing before the undersigned Veterans Law Judge, the Veteran testified to having hearing loss, which he related to his service stationed in Korea during the Vietnam War. He testified to having a “fogginess” in his hearing beginning in service, as well as ringing, or tinnitus, beginning in service. (Hearing transcript (HT), pg. 9.) He also testified to being treated for his hearing loss by a VA audiologist, including being prescribed hearing aids in both ears. (HT, pg. 11.) At the hearing the Veteran clarified while his had submitted an initial opinion letter by Dr. Hall in which he had stated that the Veteran was in combat in Korea during the Korean War, they had submitted a corrected statement from Dr. Hall recognizing that the Veteran served in Korea during the Vietnam War, and not the Korean War. Careful review of VA treatment records reveals that while the Veteran was prescribed hearing aids, treatment evaluations did not reveal the presence of a bilateral hearing loss disability for VA purposes. For example, in an October 2016 treatment record, the audiologist noted the Veteran’s hearing was within normal limits except for a notch of mild hearing loss at 30 decibels at 8,000 Hertz in the right ear, and a notch of mild hearing loss again at 30 decibels at 6,000 to 8,000 Hertz in the left ear. Hearing loss for VA disability purposes is determined by loss at frequencies between 500 and 4,000 Hertz, and hence the mild losses at higher frequencies, as identified in the VA treatment records, do not reflect hearing loss disability for VA purposes. The treating audiologist also noted that the Veteran’s speech recognition score was 100 percent in each ear, and she characterized the Veteran’s hearing difficulties as a subjective decrease in hearing. Hence, the VA audiology department where the Veteran received care treated him for his subjective hearing loss complaints by affording him hearing aids, even while recognizing the absence of objective findings supporting hearing loss in an acoustic range recognized by VA for compensation purposes. Upon VA hearing loss examination in August 2012, air conduction test results were inconsistent, whereas bone conduction results more closely resembled obtained speech recognition scores. Due to the inconsistent results, the examiner found that pure tone air conduction results were not valid for rating purposes because they were not indicative of organic hearing loss. Speech recognition scores were found to be appropriate for this Veteran, based on their consistence with bone conduction findings. These speech recognition scores were 94 percent in the right ear and 88 percent in the left ear. Audiologic findings reflected abnormal contralateral acoustic reflexes in both ears and abnormal ipsilateral acoustic reflexes in the left ear. That said, the examiner concluded that while these findings indicated mixed hearing loss in each ear, the examiner could not provide a medical opinion as to the presence of hearing loss related to service without resorting to speculation. The examiner explained: The rationale is based upon the inconsistencies between the speech recognition scores and the inconsistent pure tone responses: SRTs of 15 dB with pure tone averages of 35-40 dB! In addition, the abnormal reflex test results as well as the history of vertigo episodes may be indicative of other pathologies (i.e., retrocochlear, central auditory processing, etc.) which would have to first be ruled out before an opinion can be made with regard to the etiology of the hearing difficulties. To provide an opinion in the absence of these disorders having been ruled out would be mere speculation. Thus, the August 2012 examiner recognized inconsistencies in the examination findings as well as other implicated disorders that ruled out the ability to use test findings and the Veteran’s history to support an opinion as to the presence or absence of hearing loss disability related to service. In short, the examination is non-probative due to inaccurate or unreliable factual premises. The Veteran has submitted a March 2014 letter from Terry Hall, Au.D., a private audiologist. Dr. Hall did not provide a record of a hearing examination, but provided opinions that the Veteran had both tinnitus and noise-induced sensorineural hearing loss due to “the patient’s extreme noise exposure during the two years he was active duty in the Korean War.” With respect to hearing loss, the provided opinion is non-probative both because Dr. Hall fails to provide audiometric or speech recognition findings to support a current hearing loss diagnosis, which is a requirement in determining whether the Veteran has a hearing loss disability. Additionally, while the Veteran was stationed in Korea, he did not serve during the Korean War, and hence combat-related noise exposures upon which the opinion is based is not factually supported. Dr. Hall provided a corrective letter dated in August 2016 in which he recognized the Veteran having had a “combat tour in Korea which was from August 1968 to November 1969.” While this statement recognizes dates of overseas stationing during the Veteran’s period of service, it fails to recognize that the Veteran could not have had a “combat tour” in Korea at that time, since there was not an active war in Korea at that time. More significantly, Dr. Hall recognizes the presence of current “mild-to-moderate hearing loss and a noise induced notch in the higher frequencies that caused [the Veteran] some difficulty with clarity of speech if there is any background noise present.” This opinion fails to establish the presence of a current bilateral hearing loss disability both because it fails to provide audiometric findings and speech recognition findings in support and because it fails to indicate the source of these findings upon which the opinion is based. Once again, Dr. Hall’s opinion is non-probative due to its reliance on inaccurate or unreliable factual premises, in substantial part due to failure to identify factual premises upon which it relies. Id. It is notable that Dr. Hall’s findings of a notch of mild hearing loss at higher frequencies is consistent with the VA treatment records findings, which reflect mild hearing loss present only in acoustic ranges above the 4,000 Hertz considered for hearing loss disability purposes, as discussed above. Hence, to the extent Dr. Hall’s opinions are consistent with objective findings of record, they do not support the presence of hearing loss disability in either ear under 38 C.F.R. § 3.385. The Veteran was afforded a new hearing loss examination in December 2020. The examiner carefully reviewed the record and noted that the Veteran’s service reportedly included service in the Demilitarized Zone in Korea as a weapons platoon leader with exposure to weapons fire noise known to be highly probable for hazardous noise exposure. The examiner review the Veteran’s separation physical which only included a whisper test for hearing sensitivity and the Veteran’s Reserves records which reflected periodic findings of slightly fluctuating normal hearing, including in August 1971, January 1980, June 1985, August 1989, and April 1992. The examiner also noted the VA hearing loss examination in August 2012, in which the examiner did not provide an etiology opinion for hearing loss because the Veteran’s pure tone responses were highly inconsistent. The examiner noted the March 2014 letter from private audiologist Terry Hall, observing that Dr. Hall opined that the Veteran had hearing loss related to in-service noise exposure but that no hearing test was provided to support the opinion. At the December 2020 examination, the Veteran’s initial pure tone tests were very inconsistent and were found by the examiner to suggest non-organic hearing loss. However, because the Veteran reported constant tinnitus, the examiner varied the presentation tones to obtain best results. By this means the examiner obtained consistent results that revealed the Veteran’s hearing to be within normal limits. Pure tone thresholds, in decibels at indicated Hertz levels, were as follows: HERTZ 500 dB 1000 dB 2000 dB 3000 dB 4000 dB RIGHT 20 20 20 25 25 LEFT 15 20 20 25 25 Speech discrimination scores using the Maryland CNC word list were 94 percent in the right ear and 94 percent in the left ear. The examiner found the pure tone results valid for rating purposes and use of the obtained speech discrimination scores appropriate for this Veteran. The Board does not doubt the Veteran’s belief that he has current bilateral hearing loss related to hazardous noise exposure in service. However, the question of whether or not he has a bilateral hearing loss disability in each ear, as defined by specific audiometric and word recognition findings, is a medical one beyond the ambit of lay knowledge, and hence the Veteran’s belief in having current hearing loss is not competent evidence of such hearing loss being present meeting the criteria for disability under VA regulation. As the December 2020 VA examiner ascertained, the Veteran’s tinnitus results in some interference at certain frequencies, and this may result in a perception of hearing loss, but this does not alter the medical conclusions of no bilateral hearing loss disability, and nor does it alter the necessity of medical findings to support those medical conclusions. The Veteran, as a layperson, is without the expertise needed to ascertain the presence of hearing loss disability meeting VA criteria because such requires specific testing and medical findings which are beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In March 2013, the Veteran submitted treatise evidence in the form of medical articles addressing causes of hearing loss in adults, tinnitus associated with noise exposure, and hearing loss associated with noise exposure. However, these articles ultimately do not address questions of whether or not a bilateral hearing loss disability is present in the Veteran, which is the factual question that is determinative in this case. Hence, the articles are not relevant to the Board’s basis of denial herein. The Board finds the December 2020 VA examiner’s findings and conclusions to be consistent with and supported by the balance of the record and to be supported by sound rationale and medical knowledge. Accordingly, the Board finds the examination report to be competent, credible, and entitled to substantial weight. In contrast, the March 2014 and August 2016 opinion letters of Dr. Hall are not supported by identified current audiometric or speech recognition test findings and rely on the factually incorrect premise of combat service in Korea. As already noted, medical opinions based on inaccurate factual premises are not probative. As already discussed, the August 2012 VA examiner found examination findings unreliable as a basis for formulating an opinion of etiology, due to inconsistent findings, and the Board here agrees with that examiner that the findings are not reliable, and hence non-probative, due to their inconsistency. In contrast, the Board finds entirely reasonable and founded on both facts of record and medical knowledge the December 2020 examiner’s explanation that adjustment of pure tones to accommodate the Veteran’s constant tinnitus provided valid findings. This serves to explain, at least to a significant degree, prior inconsistent findings as reflecting tinnitus interference to the extent not reflecting inconsistence due to non-organic causes. Substantially based on the findings and conclusions of the December 2020 examiner, and based on the balance of the competent and credible evidence of record which were considered by examiner and are generally supportive of the examiner’s findings and opinions, the Board finds that the preponderance of the evidence is against a finding that the Veteran has met the criteria for a bilateral hearing loss disability in either ear at any time during the claim period. Dr. Hall had diagnosed the Veteran with bilateral sensorineural hearing loss, which, as noted above, is a “chronic disease” where service connection may be warranted if it manifests to a compensable degree within one year following discharge from service. However, there is no competent evidence that the Veteran incurred a bilateral hearing loss “disability” to a compensable degree within one year of separation from service. The fact that a veteran has an organic disease of the nervous system during or after service is not determinative unless that disease results in “disability.” For hearing loss purposes, VA has defined a hearing loss “disability’ as a condition that meets the provisions of 38 C.F.R. § 3.385. Because the Veteran's bilateral hearing loss does not meet the criteria under the regulation, he cannot be awarded service connection for a bilateral hearing loss “disability.” In the absence of current disability at any time during the claim period, the claim for service connection for bilateral hearing loss must be denied. 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.