Citation Nr: 21029445 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-14 335 DATE: May 13, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran does not have a current left ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to June 1985. This matter comes before the Board on appeal from a November 2015 Regional Office (RO) rating decision. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for left ear hearing loss is denied. Service connection is warranted where the evidence of record establishes that an 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). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as sensorineural hearing loss, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 contends that his current left ear hearing loss was caused when he was hit in the head in service. He reported that someone drove by him and swung something heavy at him, perhaps a two-by-four. He also testified that he had a lot of ear problems in service. (See Board hearing transcript, page 3.) Service treatment records reflect that the Veteran was treated for a sore throat, ear pain, and nasal drainage in October 1982. He was treated with Sudafed and there is no indication of further difficulties related to this complaint. A November 1982 service treatment record reflects that the Veteran sought treatment after having had left ear pain for two days. It was noted that he had impaired hearing, pain to the touch, and slight wax build-up. He was assessed as having an ear blockage and was given ear drops. A January 1985 service treatment record reflects that he suffered a non-displaced fracture of the nasal bone when he was struck in the face by a passing jeepney driver. The Veteran testified that his first post-service treatment for left ear hearing loss was with a VA ear, nose, and throat doctor in approximately 1989, but that he did have left ear problems between 1985 and 1989. (See Board hearing transcript, page 5.) (He separated from service in June 1985.) Attempts to obtain these records on remand were unsuccessful. (See May 2020 records request reply.) The Board notes, however, that this claim must be denied based on no current left ear hearing loss disability for VA purposes, and therefore the inability to obtain records dated between 1985 and 1989 is not determinative of the Veteran's claim. The Veteran has undergone VA examinations in connection with this claim in October 2015, May 2016, August 2020, and January 2021. The audiology findings on the October 2015 VA examination report are as follows: HERTZ 500 1000 2000 3000 4000 Left 15 10 25 25 30 The four-frequency average was 22.5 decibels. The October 2015 examination report notes a left ear speech discrimination score of 76 percent. It was noted that the "[u]se of speech discrimination score is appropriate for this Veteran." The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hertz. The audiology findings on the May 2016 VA examination report are as follows: HERTZ 500 1000 2000 3000 4000 Left 20 25 25 20 25 The four-frequency average was 23.75 decibels. The May 2016 examination report notes a left ear speech discrimination score of 100 percent. The examiner diagnosed normal hearing in the left ear. At the time of the August 2019 Board remand, the record reflected that the Veteran's left ear hearing loss met the criteria for a hearing impairment on VA examination conducted in October 2015 but not on VA examination conducted in May 2016. See 38 C.F.R. § 3.385. The Board therefore remanded this claim so that the Veteran could undergo another VA examination to determine whether he has a hearing impairment for VA purposes. The audiology findings on the August 2020 VA examination report (inadvertently referred to in the December 2020 Board remand as a September 2020 VA examination report) are as follows: HERTZ 500 1000 2000 3000 4000 Left 15 20 15 15 5 The four-frequency average was 13.75 decibels. The August 2020 examination report notes a left ear speech discrimination score of 96 percent. The examiner diagnosed normal hearing in the left ear. As noted in the December 2020 Board remand, the August 2020 VA examination report reflects that the Veteran does not have a left ear hearing loss disability for VA purposes, and the examiner therefore provided a negative etiology opinion. In pertinent part, the left ear speech discrimination score was 96 percent. The Board found it necessary to remand this claim to obtain an addendum opinion that reconciles, if possible, the discrepancy in speech discrimination scores between the October 2015 VA examination report and the May 2016 and August 2020 VA examination reports. Specifically, the Board noted that the October 2015 VA examination report produced a speech discrimination score of 76 percent, which reflects a current left ear hearing loss of VA purposes, while the May 2016 and August 2020 examination reports produced speech discrimination scores of 100 percent and 96 percent, respectively, which do not reflect a left ear hearing loss disability for VA purposes. The Board therefore remanded this claim to obtain an opinion that attempts to reconcile the differing speech discrimination scores. The audiology findings on the January 2021 VA examination report are as follows: HERTZ 500 1000 2000 3000 4000 Left 10 10 10 20 5 The four-frequency average was 11.25 decibels. The January 2021 VA examination report notes a speech discrimination score of 90. The examiner diagnosed normal hearing in the left ear. It was noted that the examiner was "unable to obtain/maintain seal." With respect to VA's request for a reconciliation of the varied speech discrimination scores, the examiner noted that "Today's exam produced a speech recognition score of 90% in the left ear which is positive for hearing loss based on the Maryland CNC however the score is invalid due to symptom magnification by the Veteran." He noted that "Records show that Veteran's hearing in the left ear has been within normal limits since separation. A speech recognition score of 76% is not consistent with normal pure-tone thresholds." The examiner further noted that "Also speech discrimination scores do not increase by 24% C&P exam from [August] 2020 produced normal hearing in the left ear along with a normal speech discrimination score." He then concluded that "Due to completely normal results found in the left ear in [August] 2020, and today's score being invalid due to symptom magnification, it is my opinion that the hearing loss in the left ear is less likely than not a result of military exposure." The Board finds this opinion to be highly probative, as it was authored by an audiologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). This opinion is based on review of the record and interview and examination of the Veteran. The examiner provided an opinion with a complete rationale that includes discussion of the facts of the Veteran's case and pertinent medical principles. Specifically, the examiner determined that the Veteran does not have a current left ear hearing loss disability for VA purposes, as the 76 percent speech discrimination score in the October 2015 VA examination report is not consistent with the normal pure-tone thresholds that were found on that examination. The examiner discounted the only other finding suggestive of a left ear hearing loss disability based on his determination that "the score is invalid due to symptom magnification by the Veteran." Thus, the examiner indicated that the October 2015 and January 2021 speech discrimination scores were invalid and that the Veteran does not have a current left ear hearing loss disability for VA purposes. Review of the Veteran's VA medical records reveals that, although he has sought treatment for left ear problems, he has not been diagnosed with left ear hearing loss for VA purposes. The Board acknowledges that the Veteran himself believes that he has a current left ear hearing loss disability. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the case at hand, however, while the Veteran is competent to describe left ear hearing difficulties, he does not possess the necessary medical expertise to diagnose a left ear hearing loss disability pursuant to VA regulations. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of a diagnosis of a current left ear hearing loss disability, service connection for left ear hearing loss cannot be granted. The Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against this claim and, therefore, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for left ear hearing loss must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.