Citation Nr: 21041666 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-09 836 DATE: July 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a disability manifesting as vertigo is remanded. FINDING OF FACT The evidence of record fails to establish hearing loss for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1990 to October 1993. This appeal arises from a November 2010 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). This matter was previously before the Board of Appeals for Veterans' Claims (Board) in December 2015, January 2017, March 2018, and June 2020. The Board finds substantial compliance with the remand directives regarding the issue of bilateral hearing loss. The Board notes that in October 2015, the Veteran had a video hearing before a Veterans Law Judge (VLJ) who has since left the Board. A transcript of this hearing is part of the record. In January 2018, the Veteran was notified of this, and advised that she could have another hearing before a current VLJ. The Veteran responded that she does not want a hearing. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic diseases, such as other organic diseases of the nervous system (including sensorineural hearing loss), which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309; Fountain v. McDonald, 27 Vet. App. 258, 260, 271-72 (2015) (explaining that other organic diseases of the nervous systems, include sensorineural hearing loss and tinnitus). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In other words, for certain chronic diseases, the Veteran can establish service connection by a showing of "continuity of symptomatology." Fountain v. McDonald, 27 Vet. App. at 263; Walker v. Shinseki, supra. This requires the Veteran to show (1) a condition "noted" during service, (2) evidence of post-service continuity of the same symptoms, and (3) medical or lay evidence establishing a nexus, or link, between the current disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. at 263-64. Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA defines impaired hearing as when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 decibels or greater (often identified as 3FA by examiners); or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. If these elements are not met, then a veteran's hearing is considered normal. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends her hearing loss is due to excessive noise exposure during her active duty service. A review of the evidence of record, to include VA medical records, VA examinations, and lay statements shows that the preponderance of the evidence is against a finding that the Veteran currently has a hearing loss disability, as defined by VA regulation. Therefore, the claim for service connection must be denied. The Veteran testified before the Board in October 2015 to significant noise exposure in service. This testimony was previously found credible by the Board. The Board further acknowledges that the VA have found favorably that the Veteran's military occupation specialty (MOS 75B in the Veteran's case) likely resulted in noise trauma during service, establishing an inservice incurrence/injury. Turning to a current disability and a nexus statement, the evidence of record establishes that neither element is met. The record contains numerous audiograms demonstrating normal hearing for VA purposes. Each of these audiograms was addressed by the latest October 2020 VA examiner's rationale. As an initial matter, the Board finds the October 2020 VA examination the most probative opinion of record regarding the Veteran's hearing loss. The examiner reviewed the record and addressed the pertinent evidence contained there. The Board notes that October 2020 VA examiner stated that August 2011 and July 2016 audiograms were not part of the record, he reviewed the associated documents that stated each showed normal hearing. These audiograms were obtained by the VA and made part of the record in October 2020 shortly prior to the examination. Therefore, it is possible they were not of record at the time of the examiner's review. The August 2011 and July 2016 audiograms were conducted as part of an audiology consult and therefore did not use the Maryland CNC word list. They were not VA examinations for rating purposes but are probative of the Veteran's condition. The Board notes that while the audiogram results are in graphs form, the Board is competent to interpret such straightforward graphically presented information as a fact finder. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). The pertinent results of the August 2011 and July 2016 audiograms, showing the puretone thresholds in decibels, are identified below: Aug 2011 HERTZ 1000 2000 3000 4000 RIGHT 20 20 20 20 LEFT 20 15 20 15 July 2016 HERTZ 1000 2000 3000 4000 RIGHT 15 20 15 15 LEFT 20 15 15 20 The highest threshold response for any frequency is 20 decibels (dB). Therefore, neither frequency qualification is met because no single is 40 dB or greater than the average of any three elements is below 26 dB. The speech recognition score qualification is not met either because there are not Maryland CNC wordlist speech recognition results provided. Therefore, the Board finds that the Veteran's hearing is normal for VA purposes. This aligns with the medical notes regarding these examination and the October 2020 VA examiner's findings. Therefore, the Board finds that the October 2020 VA examiner was apprised of the relevant facts pertaining to the Veteran's case when she provided her opinion. Therefore, the Board finds that the October 2020 VA examination and examiner's opinion probative and sufficient to dispose of this matter. The opinion addresses the evidence of record, accounts for any the discrepancies, and supports its rationale with empirical evidence and accepted medical literature. The October 2020 examiner found that the Veteran had normal middle ear functioning at the examination and provided a negative opinion on service connection. The Board notes that the October 2020 audiometric values are not probative of the Veteran's normal hearing. The October 2020 the examiner explained that speech detection values were obtained at 15 dB hearing loss for the right ear and at 20 dB hearing loss for the left ear. The Board notes these values are consistent with the August 2011 and July 2016 threshold results. The October 2020 examiner stated that speech recognition thresholds (SRT) were obtained at 25 dB bilaterally. The examiner stated that instructions were given to the Veteran at 35 dB HL in the left ear and the Veteran was able to understand and follow directions at the that presentation level. The examiner then stated that the Veteran's best pure tone air conduction values were: Oct 2020 HERTZ 500 1000 2000 3000 4000 RIGHT 55 40 65 75 75 LEFT 70 70 70 75 75 The examiner noted that these results are not for rating poses. The examiner noted that speech recognition test result was at 25 dB hearing loss for the right ear. The examiner identified that 3FA for the right ear is 53.3 dB hearing loss which is not within 10 dB of speech recognition test value of 25 dB. Similarly, for the left ear, the examiner noted speech recognition testing was at 25 dB hearing loss, the 3FA is 70 dB hearing loss which is not within 10 dB of SRT value of 25 dB. Therefore, the examiner stated these results suggest poor inter-test consistency for both ears. The examiner also noted a positive pure tone Stenger at 500 Hz for the left ear but could not obtain a Contralateral Interference Level. Based on these facts, the examiner stated that the best puretone results were not valid for rating purposes. The October 2020 examiner noted that the Veteran was very anxious and emotionally upset at the examination but wished to continue. The examiner asked on numerous occasions if the Veteran wanted to stop the examination, but Veteran elected to continue. The examiner noted speech recognition results were not consistent with volunteered pure tones, volunteered speech recognition test or communication observations during interview process. The Board finds that the examiner and VA met its duty to assist by providing an examination though the results failed to provide consistent responses on examination despite adequate instructions and demonstrated understanding by the Veteran. Wood v. Derwinsky, 1 Vet. App. 190 (1991) (holding that the duty to assist is not a one-way street, where a Veteran may or should have information that is essential in obtaining the putative evidence). Given the noted invalid test results, the October 2020 VA examination audiometric test results are no adequate for adjudication purposes. Simply put, the October 2020 VA examination fails to establish a current disability of hearing loss by any probative, objective evidence or finding. The October 2019 VA examiner's diagnosis of hearing loss is inadequate to establish service connection for VA purposes under 38 C.F.R. § 3.385. The October 2019 VA examination report states that the results of the examination are not indicative of organic hearing loss due to inconsistent responses provided by the Veteran. For these reasons, the October 2019 VA examiner indicated that the results are not valid for rating purposes. Further, the Board notes that there is no objective, probative evidence or finding in the October 2019 VA examination report showing a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Therefore, the October 2019 VA examination fails to establish a current hearing loss disability for VA purposes. Given the foregoing, the Board finds that the preponderance of the evidence is against a finding of a current disability of hearing loss for VA purposes. Even if the results of the October 2020 examination established hearing loss for VA compensation purposes, the probative evidence fails to show a nexus between hearing loss and the Veteran's military service. Notably, the October 2020 examiner highlighted that there was no record of any hearing loss, complaints of hearing loss, or diagnosis of hearing loss while in service. The examiner further noted that the post-service audiograms and chart notes all indicate normal hearing sensitivity bilaterally for VA disability purposes. The October 2020 examiner stated that there are sufficient documents of record to determine that the etiology of any post-service hearing impairment, if one is ever found to be present. The October 2020 examiner cited to numerous medical texts to support his rationale and opinion that the findings of normal hearing in service and years after separation establish that any current hearing loss, if any exists, is not due to in service military noise exposure. The Board has also considered service connection by continuity of symptomatology. However, there is no current finding of hearing loss for VA purposes. Moreover, there are no records that show hearing loss in service, at separation or within one year of separation. Further, there are at least two probative audiograms that show that the Veteran's hearing was normal See August 2011 and July 2016 audiograms. As such, there is no continuity of symptoms on which to establish service connection. The Board has considered the Veteran's lay statements that she has a hearing loss disability. However, the Veteran's statements are not found credible regarding whether she has hearing loss because she has failed to provide consistent responses on examination despite adequate instructions and demonstrated understanding by the Veteran. See Wood v. Derwinsky. 1 Vet. App. 190 (1991). While the Board acknowledges that the Veteran may be competent to speak to the fact that her hearing is less than it was before, or as it was prior to service, she is not competent to speak to the specific level or severity of any hearing loss as it relates to achieving audiometric guidelines. See 38 C.F.R. § 3.385. For the purposes of applying the laws and regulations administrated by VA, the level of impairment is determined by a mechanical application of the objective criteria of VA regulations. Here, the objective criteria to establish hearing loss are not reliably met by the evidence of record. Therefore, the Veteran's hearing loss cannot be considered a disability for which service connection may be granted. Should the Veteran's hearing loss progress to meet the criteria for a hearing loss disability for VA purposes at a later date, she is advised that she may file a new claim for service connection if she so desires. Based on the foregoing, the preponderance of evidence is against the Veteran's claim for service connection for hearing loss. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. Therefore, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifesting as vertigo This matter was previously before the Board in December 2015, January 2017, March 2018 and June 2020. Each time, the Board has remanded for specific actions by the RO. To date the RO has failed to substantially comply with the remand directives regarding the Veteran's disability manifesting as vertigo. Therefore, this matter must be remanded again for compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the veteran the right to compliance with the remand orders). In the Board's June 2020 decision, the remand directives clearly state to obtain an examination with a diagnosis and VA medical opinion from an otolaryngologist for the matter of a disability manifesting as vertigo. The remand directives state that if such is not possible, then adequate reasoning must be provided if such specialist is not available and if so, an opinion obtained for another qualified examiner. To date, neither an examination by an otolaryngologist nor any reasoning why an examination and opinion cannot be obtained from an otolaryngologist has been made of record. Therefore, the ordered development has not been completed and a remand is the only course of action available. See Stegall v. West, 11 Vet. App. at 271. The matters are REMANDED for the following action: Schedule the Veteran for an ear disease examination with an OTOLARYNGOLOGIST. If an otolaryngologist is not available or not allowed, adequate reasoning MUST be provided. If the examination must be conducted by examiner other than otolaryngologist, reasoning why must be provided and only then should the examination be scheduled with another appropriate examiner. The examiner is asked to conduct a complete examination along with any tests deemed necessary. After reviewing the record, the examiner is asked to accomplish and opine on the following (a.) Elicit from the Veteran a detailed history of her symptoms and provide an opinion on whether it is as likely as not (at least 50 percent probability) that Meniere's disease or endolymphatic hydrops, vertigo or any other ear diagnosis is related to the symptoms in service. Of note, the Veteran has been diagnosed with Meniere's disease or endolymphatic hydrops, which a prior VA examiner opined was not related to service because the condition was not diagnosed until 1997. This is not dispositive of the question, however. The examiner did not consider the Veteran's statements that it began in service. When rendering your opinion, please consider the Veteran's lay statements and if necessary, reconcile your opinion with any conflicting opinions of record. The examiner must be provided with a copy of this order. Any opinions expressed must be accompanied by a complete rationale. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.