Citation Nr: 21014323 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-27 822 DATE: March 11, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to November 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter wwas remanded in August 2017 and August 2018 for further development. This case was last before the Board in October 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the above issue and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for hearing loss is denied. The Veteran seeks to establish service connection for bilateral hearing loss. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the 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. The Veteran’s service treatment records (STRs) are devoid of any complaints of hearing loss. Audiometric testing results at the time of the Veteran’s October 1975 enlistment examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 5 5 5 LEFT 25 30 5 15 5 Audiometric testing results at the time of the Veteran’s October 1978 separation examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 -- 0 LEFT 5 5 0 -- 0 Additionally, the Veteran reported no ear trouble or hearing loss at the time of separation. Audiometric testing results at the time of the Veteran’s September 1982 reserves enlistment examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 5 5 0 15 5 Additionally, the Veteran reported no ear trouble or hearing loss at the time of his reserves enlistment examination. The evidence of record reflects that the Veteran underwent VA audiometric testing in December 2011. The results (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 20 25 LEFT 20 20 15 10 25 Speech discrimination (Maryland CNC) was 60 percent in the right ear and 10 percent in the left ear. The examiner noted that the use of speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, that made combined use of puretone average and speech discrimination scores inappropriate. Additionally, the examiner opined that it was not at least as likely as not that hearing loss was caused by or a result of an event in military service. In January 2021, following a Board remand, the Veteran underwent additional VA audiometric testing. The examiner found that puretone test results were inconsistent and unreliable, noting that the Veteran failed to respond to stimuli to either ear through earphones. The examiner concluded that the results were suggestive of exaggerated responses and was unable to provide an etiological opinion. The examiner noted the Veteran’s lay assertions regarding noise exposure and also noted the study “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss” as cited in the Veteran’s March 2017 informal hearing presentation. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran’s claim. Simply put, the evidence does not establish that the Veteran has ever had a hearing loss disability of either ear—either presently or at any time in the past—as defined by VA regulation. 38 C.F.R. § 3.385. The Board notes while neither examination definitively concluded that the Veteran has bilateral hearing loss for VA purposes, both examination reports reflected that the Veteran was inconsistent when being tested. Furthermore, the January 2021 examiner found that Veteran’s results were suggestive of exaggerated responses. Given the Veteran’s actions, the Board finds that VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Additionally, even assuming the Veteran has bilateral hearing loss for VA purposes, the December 2011 examiner provided a negative nexus opinion. The record contains no other opinions to the contrary and the Veteran has not provided any additional medical records showing that he has bilateral hearing loss for VA purposes. In arriving at this conclusion, the Board observes that the Veteran is competent to offer statements with respect to symptoms of diminished hearing. However, the diagnosis of a hearing “disability,” as VA defines that term, is a medically complex matter requiring the administration and interpretation of audiometric test results. Inasmuch as the Veteran is not shown to have the requisite medical knowledge, he is not competent to render a diagnosis. Accordingly, and because the competent evidence of record does not otherwise establish the presence of a hearing loss disability in either ear, the claim must be denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.