Citation Nr: 22014707 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-34 470A DATE: March 14, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most competent and probative evidence of record indicates that the Veteran did not have hearing loss in either ear that meets the VA criteria for being a disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1957 to December 1958. He died in March 2021. The appellant is his surviving spouse and has been substituted in this appeal. This case comes to the Board of Veteran's Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history that has been outlined in detail in previous Board decisions that are incorporated herein by reference. Addressing the most relevant procedural history, this claim was most recently previously before the Board in December of 2021 following prior remands in September 2017 and August 2021. The claim was remanded at that time for additional development, to include obtaining a clarifying addendum opinion regarding whether the Veteran had an actual diagnosis of sensorineural hearing loss. The case has now been returned to the Board for adjudication. Entitlement to service connection for bilateral hearing loss is denied. It is contended in this case that the Veteran had a hearing loss condition that was caused by or related to his active duty due to noise exposure in the military. See e.g. October 2014 VA Form 9. However, based on the competent, probative medical evidence of record, the Veteran did not actually have hearing loss of either ear for VA purposes. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the competent, probative medical evidence of record indicates that the Veteran did not have hearing loss and therefore, service connection for this condition is not warranted. Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or, when the auditory threshold 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing 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. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Unfortunately, the evidence of record in this particular case weighs against indicating that the Veteran actually had hearing loss for VA purposes in either ear. Turning to the evidence of record, the Veteran was afforded a VA audio examination in May of 2015. The Veteran's Maryland CNC test scores were 68 percent in the right ear and 74 percent in the left ear. The Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 100 CNT CNT LEFT 80 90 95 CNT CNT However, and more importantly, the examiner noted that there were frequencies that could not be tested due to being inconsistent with organic hearing loss. As with other audiological examinations that would follow, the examiner also explained that the test results were not valid for rating purposes because they were inconsistent with organic hearing loss. The examiner noted that the use of speech discrimination scores was not appropriate for this Veteran. The examiner diagnosed sensorineural hearing loss and also concluded that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to mere speculation. The examiner explained that the results were not consistent with organic loss as the Veteran was able to converse and respond appropriately when he was talking at a normal volume and when talking behind the Veteran's back despite showing a pure tone threshold of severe to profound loss. The examiner also noted that SRTs were obtained at 60dB in both ears, which is in poor agreement with pure tone thresholds. Further, the examiner stated that the Veteran also showed fair to good word recognition at a presentation level that was 70 dB below his state pure tone results. Interestingly, the examiner also noted that acoustic reflexes were still measurable in both ears when the pure tone loss the Veteran was showing would more logically be consistent with absent reflexes. Similarly, in the September 2020 VA examination report, the VA examiner determined that the Veteran's pure tone threshold test results were not valid for rating purposes because the Veteran's thresholds were likely "inorganic." The VA examiner noted that the Veteran was able to converse while the examiner was wearing a mask but presented as having profound hearing loss when testing. The VA examiner also noted that speech discrimination scores were not appropriate. The examiner stated that the Veteran was malingering, so it was not possible to determine the Veteran's actual hearing loss and whether it was etiologically related to active service. However, the examiner still diagnosed the Veteran with sensorineural hearing loss and therefore, the Board determined that an additional remand was necessary in August of 2021. In the remand, the Board stated that it was unclear what the VA examiner was referring to when stating that the Veteran was malingering. Additionally, it was also unclear what the VA examiner meant by stating that it was not possible to determine the Veteran's actual hearing loss and whether it was noise-induced, despite providing an opinion that the Veteran's hearing loss was less likely than not related to active service. Therefore, the Board directed the RO in the August 2021 remand to obtain an addendum medical opinion clarifying the nature and etiology of the Veteran's hearing loss. In the August 2021 addendum opinion authored on that remand, the VA examiner essentially repeated the previous opinion. The examiner opined that it was less likely than not that the Veteran's hearing loss was related to service. The rationale was that the Veteran's hearing loss was likely inorganic. According to the VA examiner, the Veteran presented with a profound hearing loss, but was able to converse with the examiner while the examiner was wearing a mask and was able to hear speech "far below his thresholds." The Board found that an additional remand was warranted because the August 2021 addendum opinion was determined to be essentially the same as the September 2020 opinion and remanded the claim most recently in December of 2021. Thereafter, an additional opinion was obtained in January of 2022 in which it was stated that the examiner had reviewed the Veteran's entire claims file. That examiner clarified that the Veteran did not have hearing loss for VA purposes. It was further reasoned that hearing loss did not exist because the Veteran "was malingering". This was evidenced by the Veteran's reports of a profound hearing loss even though he could converse with the examiners and had speech recognition test results in the moderate hearing loss range. Significantly, even when portions of VA opinions were deemed inadequate, it is still noteworthy that examiners reached a similar conclusion in regard to the Veteran's asserted hearing loss being inorganic. Thus, the Board relies on the January 2022 VA examiner's opinion, as well as the objective evidence of record, in determining that the persuasive weight of the evidence indicates that the Veteran did not have a compensable hearing loss condition. The treatment records associated with the claims file have also been reviewed and considered. These records also clearly do not document the existence of hearing loss and instead show that the Veteran himself denied having such a condition on multiple occasions. See e.g. September 2017, February 2018, June 2019 VA Treatment Records. The Board finds the Veteran's statements to treating physicians to be more probative than his claims made in furtherance of compensation benefits. See Rucker v. Brown, 10 Vet. App. 67,73 (1997); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Additionally, these records do not address the etiology of hearing loss and do not link it to military service in any manner. It is regrettably not clear the extent to which the Veteran actually had hearing loss as his results were apparently inorganic at every VA examination. Given that the Veteran is now deceased, there is unfortunately no way to afford him an additional opportunity to present authentically at a VA audiological examination. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Further, it must respectfully be noted that he was given numerous opportunities to present any genuine symptoms he experienced at the numerous VA examinations he was afforded as VA continued to attempt to obtain a genuine scope of his disability picture. A Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims, including portraying an authentic depiction of symptomology at scheduled VA examinations. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Overall, the objective evidence throughout the record indicates that the nature of any hearing loss the Veteran experienced was not in fact severe enough to rise to the level of being a compensable disability for VA purposes. The Board acknowledges the lay assertions that the Veteran in fact had a compensable hearing loss condition that was related to his military service. The Board also acknowledges the February 2022 correspondence submitted in support of this claim which states that "VA contends the deceased veteran exaggerated his hearing loss. This is an opinion generated in the aftermath of a deceased veteran who is not here to defend himself. We find that statement offensive... VA cannot rely solely on the speech recognition test. VA did not contemplate other functional effects, including but not limited to 'ear pain, dizziness, loss of balance, or social isolation due to difficulties communicating.' See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also King v. Shulkin, 29 Vet. App. 174 (2017)." The Board first gently notes that in contrast with this being "an opinion generated in the aftermath of a deceased veteran who is not here to defend himself", the objective evidence that he "exaggerated his hearing loss" began well before his death and spans over a number of years when he was in fact very much alive and he was aware of this given the fact that he was in the midst of an appeal for the denial of his claim at the time of his death. His appeal, which his surviving spouse has now been substituted on, inherently represents an opportunity "to defend himself". In regard to the other assertions made in this correspondence, even if the Veteran's portrayed disability level had been authentic, which the weight of the evidence indicates it was not, this symptomology would have been the kind contemplated by the schedular rating schedule. See Doucette, 28 Vet. App. 366 (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria"); see also Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017) (holding that symptoms of not being able to hear conversations, especially in noisy or crowded places, and difficulty hearing his spouse were "squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria"). More importantly, this issue would only be relevant if service connection had been found to be warranted, which it is clearly not. In other words, the question of whether there were manifestations of the Veteran's asserted hearing loss that were not accounted for by the schedular criteria is an irrelevant one in lieu of the fact that he did not have a current disability and service connection is not warranted on that basis alone. Brammer, 3 Vet. App. 223. (Continued on the next page) The Board has considered whether the Veteran authentically experienced hearing loss at any time during the pendency of this appeal as it is noted that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no objective evidence of hearing loss for VA purposes at any time during the pendency of this appeal and it has been affirmatively determined that the times when this condition were noted were based on inorganic displays of symptomology. See January 2022 Compensation and Pension Examination. In contrast, the Board emphasizes once again that there is no documented hearing loss in his treatment records and the Veteran himself denied having this condition on multiple dates. In fact, it appears that the rare times when he actually endorsed having this condition were almost always when examinations took place in association with his request for compensation. This unfortunately weighs against the credibility of the lay assertions made by the Veteran and his spouse in the scope of the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant). The threshold element of a service connection claim (the existence of a current disability) has not been met; therefore, service connection for hearing loss must be denied. Based on the foregoing, the Board finds that the evidence of record is against a finding of service connection for hearing loss. As the persuasive weight of the evidence is against the claim, the benefit of doubt doctrine is not applicable. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.