Citation Nr: 21031427 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-43 429 DATE: May 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has a diagnosis of bilateral hearing loss for VA purposes during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from June 1979 to October 1979, February 1980 to February 1983, and from September 1990 to September 1991. He also had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army Reserve. In November 2018, the Board remanded this matter to provide the Veteran with a new VA audiological examination. The examination was provided in August 2018. There has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss caused by exposure to noise during service. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including organic disease of the nervous system, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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. Medical and Lay Evidence The Veteran was first schedule for a VA audiological examination in August 2015, but the Veteran did not appear for this examination. The appellant was afforded a VA audiological examination in November 2015; however, the examiner was not able to determine the appellant's levels of hearing acuity or word recognition ability due to inconsistencies in Veteran's volunteered responses after re-instruction and re-test. Thus, the examiner could not determine whether the appellant had hearing loss for VA purposes. In November 2018, the Board remanded this matter to obtain another VA audiological examination. The remand directives stated that, if inconsistencies arise again in the Veteran's results, the examiner should provide adequate reasons and bases for the inconsistencies, to include whether it is due to malingering on the part of the Veteran. The new VA audiology examination was provided in August 2019. After conducting Puretone tests and the Maryland CNC word score, the state-licensed audiologist who conducted the examination found that the Puretone test results are not valid for rating purposes. The examiner explained that the Puretone tests produced inconsistent and unreliable responses despite re-instruction and re-testing twice. The examiner also found that the use of the Speech Discrimination score (Maryland CNC word list) is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of Puretone average and speech discrimination scores inappropriate. The examiner explained that the Veteran presented with weary disposition stating he was 60 years old. The Veteran demonstrated an ability to communicate without speech reading, appropriately to conversational speech prior to and post testing. The Veteran communicated appropriately in response to instructions presented at 60 dB speech using audiometer talk over mode. Veteran acknowledged hearing ("I could hear something") in response to masking speech noise of 50 dB in left ear and 35 dB in right ear. For Puretone testing, Veteran demonstrated an ability to respond when sounds were loud enough to cause discomfort with noted head turn for both air and bone conduction presentations within VA allowed limitations. Left speech recognition results suggest mild hearing loss in speech frequency range. The reason for above behavior is undetermined and is most uncommon for any person with hearing loss. Such behavior lends to question the possibility of malingering or other non-organic causes. Analysis Two separate state-licensed audiologists have been unable to render a diagnosis of bilateral hearing loss for VA purposes due to inconsistencies in the Veteran's audiological examinations. The Board notes that the duty to assist is not a one-way street, and that the Veteran has the duty to comply with audiologist instructions. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of valid Puretone tests and Maryland CNC word scores, a current hearing loss disability in either ear for VA purposes cannot be established. 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Regarding the Veteran's claim for bilateral hearing loss, in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran's statements that his active duty service caused bilateral hearing loss. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., hearing loss; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, in this case he is not competent to independently render a medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Without competent evidence of a diagnosis of a bilateral hearing loss disability under 38 C.F.R. § 3.385, the Board must deny the Veteran's claim. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for bilateral hearing loss must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.