Citation Nr: 21028392 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 064 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had bilateral hearing loss at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2007 to October 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the issue on appeal in April 2020, as well as issues of entitlement to service connection for left ankle and bilateral knee disabilities. In November 2020 and December 2020 rating decisions, the RO granted service connection as to those two disabilities, which constituted a full award of the benefits sought. Entitlement to service connection for bilateral hearing loss is denied. The Veteran filed a September 2014 claim for service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the following frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at the above thresholds 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons that follow, the Board finds that service connection is not warranted. The Veteran had complaints of hearing loss in service. The Veteran reported headaches, muffled hearing, and left ear hearing loss with earache and pressure in November 2010. The assessment noted otitis externa acute left ear with notable changes in hearing. In a January 2012 audiogram, the Veteran's hearing was normal. In May 2013, while deployed in Bahrain, the Veteran failed a hearing screening. See also May 2013 audiogram. In June 2013, the clinician noted that recent audiograms showed moderate to severe bilateral hearing loss at nearly all frequencies, but there was an incomplete workup to explain the degradation in hearing. The decision was made to descreen the Veteran and return her from her deployment for further evaluation. See June 2013 service treatment records. A July 2013 follow up evaluation showed inconsistent test results that could not confirm hearing loss. Of note, the clinician indicated that pathologic or noise-induced bilateral hearing loss was not suspected due to inconsistent audiology results and normal otoacoustic reflex testing upon current examination. The clinician went on to note that these findings raised concerns for possible malingering or facetious disorder. In August 2013 a hearing test was performed and the audiological evaluation showed pure tone threshold which would be considered hearing loss. However, in the September 2013 service treatment records, the clinician noted that the testing showed, among others, inconsistent tonal responses, normal absolute and tonal latencies, and ASSR (Auditory Steady-State Response) testing revealed a physiologic audiogram considered within normal limits in both ears. At that time, the Veteran reported hearing loss that onset one year prior, with trouble hearing only in the main space of the engine room of the ship. Given the inconsistent results, the clinician gave a diagnosis of abnormal auditory perception. See also September 2013 audiogram (showing normal hearing bilaterally). In August 2014, the Veteran underwent two in-service audiological evaluations for separation. On the first authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 35 50 35 LEFT 45 35 45 45 40 On the later August 2014 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 50 50 65 LEFT 45 50 50 50 50 In the September 2014 separation report of medical history, the Veteran reported current hearing loss. The comment section of October 2014 separation examination noted hearing loss per audiology testing over the last six years. The Veteran was afforded multiple VA examinations as to this claim. In August 2016, a VA examiner evaluated the Veteran and determined that there is no diagnosis because there is no pathology to render a diagnosis. In doing so, the examiner reviewed the in-service treatment records. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 10 0 LEFT 0 10 0 5 0 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. Test results were valid for rating purposes and use of speech discrimination score is appropriate for this Veteran. Pursuant to the Board's remand, the Veteran was examined in September 2020. The VA examiner evaluated the Veteran and determined that she did not have a diagnosis of hearing loss. See also September 2020 medical opinion. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 5 LEFT 0 10 5 10 5 Test results were valid for rating purposes. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Use of speech discrimination score is appropriate for this Veteran. Ultimately, the examiner concluded that there are no findings, signs and or symptoms to support a diagnosis. This is consistent with post-service treatment records, which are silent for complaints, diagnosis, or treatment for hearing loss. In March 2018 treatment record, the Veteran was noted as negative for hearing loss. In a March 2019 screening, the Veteran was not hearing impaired. Upon review, the Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one approximate to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Board notes the August 2016 and September 2020 VA examinations are probative evidence in this matter. Each of the VA examiners had appropriate training and knowledge to evaluate the claimed disability. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim. This included consideration of the Veteran's reported symptoms during and after service, and the clinical history. Of note, each VA examiner reviewed the service treatment records, including the August 2014 audiograms, and concluded there was no current diagnosis. The lack of a diagnosis is consistent with the extensive summer 2013 testing the Veteran underwent in service. Ultimately, that testing and extensive follow up by specialists concluded that audiograms showing hearing loss were not the most accurate measure of whether a hearing loss disability existed. Rather, the extensive evaluations indicated audiograms were incompatible with objective testing including ASSR. Ultimately, the clinicians concluded that there was no pathologic or noise induced bilateral hearing loss. These clinicians were trained specialists and came to those conclusions upon extensive tests and review of the Veteran's clinical records. Their findings and opinions are probative for this reason. In contrast, the August 2014 service treatment records did not include such extensive testing or review of the Veteran's whole clinical records. Of note, the October 2014 separation examination relied on an inaccurate six year history of hearing loss. As such, the Board finds that these findings are entitled to less probative weight. In reaching the above conclusion, the Board has considered the previous April 2020 Board decision. At that time, the Board noted that the in-service audiogram was evidence of hearing loss at the time of the Veteran's claim. While this is accurate, that evidence is not the most probative evidence of whether a hearing loss disability exists. As noted above, there are more probative and persuasive evidence of record. Finally, while the Veteran believes she has a current diagnosis of bilateral hearing loss, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Veteran has provided inconsistent statements as to her hearing acuity. Of note, the Veteran denied impaired hearing or hearing loss in VA treatment records. Consequently, the Board gives more probative weight to the VA examinations, and the extensive in-service clinical findings in the summer of 2013. In sum, the preponderance of the probative evidence shows the Veteran does not a current diagnosis of hearing loss. There is no reasonable doubt to be resolved. Service connection for bilateral hearing loss is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.