Citation Nr: 21041537 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-19 022 DATE: July 9, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a connection between bilateral hearing loss in September 2014 and the Veteran's service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board remanded the claim to obtain an adequate VA examination. As that development has been complied with, the Board will now adjudicate the claim on the merits. Dyment v. West, 13 Vet. App. 141, 14647 (1999). The Veteran seeks service connection for bilateral hearing loss. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of VA disability compensation, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 hearing loss is due to his service in Panama, following an episode where he contracted a mosquito-borne infection and began having ear infections. He also has testified to noise exposure during 18 months in the field in Panama with live rounds shot every other week, to include M-60s, grenades, and C-4, never with hearing protection. Service treatment records reflect that the Veteran had an ear infection and bilateral ear pain in October 1980. A month later, a Physical Profile Record found the Veteran had sensory neural hearing loss in the left ear. An April 1981 audiological evaluation noted that "P[atien]t was tested and results were not obtained. L ear R ear looks normal. . . . [R]esults not in agreement, p[atien]t to be retested in future." In May 1981, a Physical Profile Board Proceeding stated the Veteran had left-ear anacusis and right-ear moderate hearing loss. The Veteran filed his service-connection claim with a September 2014 VA audiology consult that found hearing thresholds at 500, 1000, 2000, 3000, and 4000 Hertz at 45 dB, 45 dB, 45 dB, 50 dB, and 55 dB in the right ear and 55 dB, 50 dB, 55 dB, 65 dB, and 70 dB in the left ear. Speech discrimination scores were 100 percent bilaterally. In connection with the Veteran's claim, a VA examination was provided in June 2015. Though audiological testing was administered, the examiner found "large differences between results" that "suggest[ed] poor pure tone test reliability." Though another VA examination was provided in December 2015, the Veteran left the examination prior to its completion. The Veteran later clarified at a December 2018 Board hearing that he has trouble with hearing tests because it aggravates the symptoms of his service-connected PTSD. At a new VA examination in July 2019, audiometric testing found thresholds of 15 dB, 10 dB, 10 dB, 10 dB, and 10 dB in the right ear, and 10 dB, 10 dB, 10 dB, 15 dB, and 10 dB in the left ear, with speech discrimination scores of 100 percent in the right ear and 96 percent in the left ear. The examiner, Dr EH, opined that the results of the April 1981 in-service audiological examination "were most likely unreliable" as "[i]t was noted Stenger tests were not reported" which "are designed to rule out non-organic hearing loss." In a January 2020 addendum opinion, Dr EH opined that the in-service "anacusis (complete deafness) in the left ear and hearing loss in the right ear was probably erroneous and invalid" because "it appeared that tests to rule out exaggerated hearing loss, that is, non-organic hearing loss likely were not conducted." Thus, Dr EH concluded that "the Veteran was more than likely misdiagnosed concerning hearing loss . . . during active service." In November 2020 the Veteran went to VA for an audiology assessment following loss of his hearing aids. The clinician conducted audiometric testing that found thresholds of 20 dB, 25 dB, 15 dB, 25 dB, and 30 dB in the right ear and 25 dB, 30 dB, 30 dB, 25 dB, and 25 dB in the left ear. Word recognition scores using the NU-6 list were 100-percent in the right ear and 96-percent in the left ear. The assessment diagnosed mild sensorineural hearing loss. Following the Board's most recent December 2020 decision, a new opinion was provided in March 2021. Though a full examination was originally scheduled, the Veteran expressed that he did not wish to undergo another examination, so the audiologist was asked to provide an opinion. After review of the Veteran's medical history and his contentions regarding a connection to service, the audiologist opined that the results of the 1981 in-service audiogram were invalid. Regarding a connection between the September 2014 audiometry evaluation and service, the clinician opined that September 2014 findings of "flat moderate S[ensory] N[eural] H[earing] L[oss] is not consistent with noise-induced hearing loss." She added that since the Veteran's hearing loss since September 2014 appears to have been temporary, it was consistent with ototoxic medication. Last, the clinician stated that the ear infections reported in service "would have no effect on any current hearing loss . . . because otitis externa is no longer present." Based on all the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. As an initial matter, the Board notes that the September 2014 audiometry evaluation is the only evidence of hearing loss during the appeal period that satisfies the criteria for a current hearing-loss disability under 38 C.F.R. § 3.385; the results of audiometry testing in July 2019 and November 2020 do not meet the criteria for hearing loss as a current disability for compensation purposes. Thus, as noted in the Board's prior December 2020 decision, service connection in this case may only be granted in this case if it is shown that the hearing loss in September 2014 is related to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that service connection is warranted only where there is evidence of a current disability). As to a connection between the September 2014 hearing loss and the Veteran's service, the Board finds that the preponderance of the evidence is against a connection to service. Regarding the contention of a connection to in-service noise exposure, the March 2021 clinician opined that the Veteran's diagnosis and pattern of hearing loss in September 2014 is not consistent with noise-induced hearing loss. Regarding the contention of a connection to the in-service ear infections, the March 2021 clinician opined that the ear infections were unrelated to any current hearing loss because otitis externa is no longer present. The Board finds that this evidence, which was based on review of the Veteran's file and the clinician's applied expertise, is the most probative evidence of record as to a connection to these in-service events. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board's role is to assess the weight of all evidence). This finding is unaffected by the service treatment record findings of purported left-ear deafness and right-ear decreased hearing, because the Board finds that the preponderance of the evidence supports that these findings were invalid. Both the January 2020 examiner and March 2021 clinician found that the tests were most likely invalid and that therefore the diagnoses were mistaken, and the Board notes that the April 1981 audiometry evaluation itself stated that "results were not obtained" and were "not in agreement." Thus, the Board finds that those 1981 diagnoses of anacusis and decreased hearing are not reliably probative evidence of a connection to service. The Board acknowledges the Veteran's belief that his hearing loss is connected to his in-service noise exposure or ear infections following his in-service illness; however, the Veteran has not submitted any evidence to establish that he has the education, training, or experience to opine on the etiology of hearing loss, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, because the preponderance of the evidence is against a connection between any current hearing-loss disability and the Veteran's service, the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.385. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.