Citation Nr: 22016464 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-11 146A DATE: March 22, 2022 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. REMANDED Entitlement to service connection for a hysterectomy, to include infertility, is remanded. FINDING OF FACT The competent evidence shows that the Veteran does not meet the criteria for a left ear hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to April 1979. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A March 2019 Board decision remanded the issues on appeal for further development. At the time of the March 2019 remand, the issue before the Board included entitlement to service connection for a bilateral hearing loss disability. Since then, service connection for a right ear hearing loss disability was granted in a November 2021 rating decision. This constitutes a full grant of the benefit sought as to that ear. As service connection for a left ear hearing loss disability remains denied, that issue is still before the Board. The Veteran testified before a Veteran Law Judge (VLJ) no longer employed at the Board during an October 2018 hearing. The transcript of the hearing is of record. VA provided the Veteran the opportunity to have a new hearing before a VLJ who would decide her case. See January 2022 VA correspondence. The Veteran did not respond. As a result, the Board finds it may proceed with adjudication. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that she is entitled to service connection for a left ear hearing loss disability. The Board concludes that the competent evidence indicates that the Veteran does not have a current left ear hearing loss disability for VA purposes and service connection is therefore not warranted. Establishing service connection generally requires medical or, in certain circumstances, lay 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 disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). For VA purposes, 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 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. March 2013 VA treatment records noted normal hearing through 4000 hertz. August 2017 VA treatment records noted normal hearing in both ears through 3000 hertz. December 2018 VA treatment records noted normal hearing in the left ear through 2000 hertz. At the November 2010 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 5 15 10 The average puretone threshold was 11.25 decibels in the right ear and 11.25 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The examiner found that hearing loss was not present and both ears were within normal limits from 500-4000 Hertz. At the December 2012 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 10 15 20 The average puretone threshold was 20 decibels in the right ear and 16.25 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The examiner found that hearing loss was not present and both ears were within normal limits from 500-4000 Hertz. The examiner noted the Veteran's reports that she had difficulty understanding what others were saying and that she avoided taking part in group activities such as church services. At the March 2021 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 10 30 35 The average puretone threshold was 29 decibels in the right ear and 25 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner found that the Veteran's left ear hearing was within normal limits per VA guidelines. The examiner noted the Veteran's reports that she had to ask people to repeat what they were saying. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). As noted above, in order to be considered a disability for VA purposes, hearing loss must be shown to meet specific audiometric criteria. In this case, the evidence does not support the conclusion that those criteria have been met for the left ear. All VA examinations noted that the Veteran's left ear hearing was within normal limits per VA guidelines. All VA examinations and VA treatment records show that the required auditory thresholds were not met. There is also no indication that the Veteran's speech recognition score in either ear ever fell below 94 percent. The Board therefore finds that the Veteran's left ear hearing impairment does not meet the criteria to be considered a disability for VA purposes. The Veteran is competent to report her difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) (2017). Nevertheless, as a layperson, without the appropriate medical training and expertise, her statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of her left ear hearing loss disability in terms of the applicable criteria and whether the threshold of a disability is met. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of her bilateral hearing loss, including audiometric testing for puretone thresholds. The Board therefore finds that the competent evidence of record indicates that the Veteran's left ear hearing loss does not meet the criteria to be considered a disability for VA purposes. Service connection is therefore not warranted. 38 C.F.R. §§ 3.303, 3.385. REASONS FOR REMAND Entitlement to service connection for a hysterectomy, to include infertility The Veteran contends that her hysterectomy and infertility are due to her exposure to hazardous materials at George Air Force Base (AFB). A February 2019 private medical examiner opined that the Veteran's hysterectomy and infertility were as likely as not caused by water contamination at George AFB. The March 2019 Board remand asked the RO to attempt to verify if the Veteran was exposed to hazardous materials, to include radioactive waste, while serving at George AFB. The Board notes that while the RO conducted development regarding the Veteran's exposure to radiation, the RO did not conduct the required development with regard to other hazardous materials, to include contaminants in the water supply at the base. The Board therefore finds that remand is required to ensure compliance with the terms of the March 2019 remand. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Attempt to verify if the Veteran was exposed to any hazardous materials (e.g. jet fuel, depleted uranium munitions) while serving at George Air Force Base, to include exposure to hazardous materials in the base water supply. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.