Citation Nr: 21031478 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 16-12 874 DATE: May 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran does not have a currently-diagnosed right ear hearing loss disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 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 in the United States Air Force from August 1980 to October 1983. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. The Board previously remanded these matters in March 2019 for additional development. At that time, the Board also remanded claims for service connection for an acquired psychiatric disorder and tinnitus. As those claims were subsequently granted in a September 2020 rating decision, they are no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1331. 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 puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 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. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for right ear hearing loss The Veteran seeks entitlement to service connection for right ear hearing loss, which he contends was incurred in or caused by military noise exposure. The Veteran contends that he was exposed to hazardous noise during service due to his military occupational specialty (MOS) of electric power line specialist, which required him to work close to the flight line, power generators, and loud bucket trucks during service. The Veteran's exposure to acoustic trauma during military service has been conceded. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must have resulted in a hearing loss disability. The Veteran's service treatment records have been associated with the claims file, including his March 1980 enlistment examination and October 1983 separation examination. Audiometric data taken at the Veteran's enlistment and separation examinations show that he had normal bilateral hearing, with no significant threshold shifts in hearing acuity between entrance and discharge. The service treatment records do not document any findings related to any complaints, treatment, or diagnosis for hearing problems during service. At his separation examination, the Veteran denied a history of hearing loss or ear problems. The Veteran underwent two VA audiological examinations during the pendency of his appeal. In June 2013, audiometric testing revealed pure tone thresholds, in decibels, as follows: 10 dB at 500 hertz; 10 dB at 1000 hertz; 5 dB at 2000 hertz; 5 dB at 3000 hertz; and 10 dB at 4000 hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. In October 2019, audiometric testing revealed pure tone thresholds, in decibels, as follows: 25 dB at 500 hertz; 25 dB at 1000 hertz; 25 dB at 2000 hertz; 30 dB at 3000 hertz; and 35 dB at 4000 hertz. Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Based on the results of these two VA audiological examinations, the Veteran is not shown to have a hearing loss disability in the right ear under the provisions of 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). After careful consideration of the objective audiometric testing of record, the Board concludes that the Veteran does not have a current right ear hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Board observes that the Veteran's service treatment records do not contain any complaint, treatment, or diagnosis indicative of hearing loss during service or within one year of discharge. Audiometric testing performed at the June 2013 and October 2019 VA examinations do not reveal auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz to be 40 dB or greater; auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz to be 26 dB or greater; or speech recognition scores less than 94 percent. Therefore, the Veteran does not have a current right ear hearing loss disability for VA compensation purposes, as required under 38 C.F.R. § 3.385. Where there is no evidence of a current disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Finally, while the Veteran is competent to report symptoms of disability, he is not shown to have the specialized medical training required to render a diagnosis for a complex medical condition such as sensorineural hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence to establish that he has a current diagnosis of right ear hearing loss pursuant to 38 C.F.R. § 3.385. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for right ear hearing loss. Because the evidence fails to establish that the Veteran has a currently-diagnosed right ear hearing loss disability for VA compensation purposes, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the Veteran's service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. The Veteran seeks entitlement to service connection for left ear hearing loss, which he contends was incurred in or caused by military service. Military noise exposure has been conceded based on the Veteran's MOS of electric power line specialist and the description of his duties. Pursuant to the March 2019 Board remand, the Veteran underwent a VA audiological examination in October 2019. On examination, the Veteran was confirmed to have a hearing loss disability in his left ear for VA compensation purposes pursuant to 38 C.F.R. § 3.385. However, the VA examiner opined that the Veteran's hearing loss is less likely than not incurred in or caused by military service. In making this determination, the VA examiner noted that "although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology." The examiner ultimately found no nexus based solely on the fact that the Veteran's hearing acuity was within normal limits, with no evidence of threshold shift, at both his entrance and separation examinations. The examiner offered no other plausible etiology for the disability. This medical opinion provides an insufficient basis on which the Board can rely to deny a claim for service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of a hearing loss disability during service is not in and of itself fatal to a claim for service connection for hearing loss). In this regard, the VA examiner did not consider the relevance, if any, of the Veteran's MOS, description of duties, or his conceded exposure to acoustic trauma during service. In light of the above, Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the Veteran's behalf. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the RO must obtain an addendum medical opinion that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Moreover, the Board notes that, in a May 2021 appellate brief, the Veteran's representative presented medical evidence which suggests that the onset of hearing loss may be delayed for many years following acoustic trauma. As such, the addendum opinion obtained on remand must adequately consider the Veteran's history of military noise exposure and the possibility of delayed-onset hearing loss. The matter is REMANDED for the following action: Forward the Veteran's claims file to a VA audiologist to provide an addendum medical opinion addressing the nature and etiology of his left ear hearing loss disability. A full audiological examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss disability had its onset during active service, within one year of separation, or is otherwise related to any in-service disease or injury, to include conceded exposure to excessive military noise? The requested opinion must adequately discuss and consider the relevant evidence of record, to include the Veteran's hearing testimony and other lay statements of record describing his MOS duties as an electric power line specialist and statements as to the duration and frequency of his exposure to hazardous noise during service. The opinion must also specifically discuss the significance, if any, of the results of the 2009 study by Dr. Sharon Kujawa which suggests that delayed-onset hearing loss may be possible. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should note that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran's lay statements and other evidence of record must be considered and weighed in making the determination as to whether a nexus exists between the Veteran's hearing loss disability and military service. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.