Citation Nr: 22018674 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-47 376 DATE: March 30, 2022 ISSUE Entitlement to service connection for a bilateral hearing loss disability. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran does not have a bilateral hearing loss disability of such severity to constitute a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1985 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus were each denied in a rating decision from July 2003. Those rating decisions became final. The Veteran then again filed claims for entitlement to service connection for bilateral hearing loss and tinnitus, which were denied in rating decisions from December 2015. The Veteran filed a timely Notice of Disagreement (NOD) in January 2016, and he was issued a statement of the case (SOC) in August 2017. The Veteran then filed a timely VA Form 9 in September 2017, appealing his claims to the Board. He requested a hearing before a Veterans Law Judge, and his claims were eventually certified to the Board in November 2017. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In a Decision from October 2021, the Board found that new and material evidence had been received to reopen the bilateral hearing loss disability and tinnitus claims. The Board then denied entitlement to service connection for tinnitus, while entitlement to service connection for a bilateral hearing loss disability was remanded for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a bilateral hearing loss disability. The Veteran has claimed that he has a bilateral hearing loss disability that is due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted above, the Veteran was given a Board hearing before the undersigned Veterans Law Judge in July 2021. During the hearing, the Veteran testified that he had a current bilateral hearing loss disability, that was due to him "working on the flight deck in the service," with jets "on the [aircraft] catapults." The Veteran acknowledged that he did not previously have hearing loss for VA purposes, but when compared to his previous audiological tests, he stated that his hearing loss "absolutely, definitely has gotten worse through the years." In the Veteran's VA Form 9, he wrote that he worked on the flight deck of the USS Carl Vincent where I was exposed to the jet engines of the F-14s, EA-6Bs, A-6s, A-7s, S-3s, E-2s and C-2s. During flight operations we would average launching around 40 jets a day. At home port, (NAS Alameda), not only was I exposed to the engines of the F-14s, EA-6Bs, A-6s and other transient aircrafts like C-130s, C-9s, P-3s, [I was exposed to] harrier jump jets, helicopters on the flight line. The Veteran is competent to report the symptoms he experiences, such as those associated with his claimed bilateral hearing loss, as well as what he experienced during his active-duty service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As discussed above, the Veteran's claim was previously before the Board in October 2021. In that Decision, the Board found that a private audiological report from Dr. D.M., completed in August 2015, was inadequate, as there was evidence that the examiner provided their etiological report exclusively from the subjective reports of noise-exposure provided by the Veteran, as opposed to an objective review of the claims file. The Board also found the VA examination from November 2015 inadequate, as the examiner stated that the test results obtained during that exam were not valid for rating purposes, partially due to inconsistent behavioral responses. As such, the Veteran's claim was remanded by the Board. The Veteran was to be given a VA examination, so that his claimed bilateral hearing loss disability could be confirmed, and an etiological opinion could be rendered. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). That VA examination occurred in February 2022. The VA audiologist had access to the Veteran's claims file and conducted an in-person audiological evaluation. The examiner noted the Veteran's lay statements, which included the Veteran's claims of in-service exposure to hazardous noise. Audiological testing indicated the following the decibel loss at the pure tone threshold for each ear: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 20 25 LEFT 10 10 15 15 25 Speech discrimination was found to be 100 percent for both ears. The examiner indicated that the use of the word discrimination score was appropriate for the Veteran. There is no evidence that the VA audiologist was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity and diagnosis of the Veteran's bilateral hearing loss disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to an analysis of the evidence, the Board finds that the Veteran does not currently have a bilateral hearing loss disability of such severity to constitute a disability for VA compensation purposes. 38 C.F.R. § 3.385. Considering the audiological measurements from the February 2022 VA audiologist, the Veteran was not found to have the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz at 40 decibels or greater, or that the auditory thresholds for at least three of those frequencies were 26 decibels or greater, or that his speech recognition scores using the Maryland CNC Test was less than 94 percent. 38 C.F.R. § 3.385. Thus, notwithstanding the Veteran's assertion that he has a bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have a current bilateral hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Thus, the Board finds that entitlement to service connection for a bilateral hearing loss disability is not warranted. In reaching these conclusions, the Board finds that the evidence persuasively stands against finding in favor of the claim in that it is not in approximate balance or nearly equal to the evidence that supports the claim. As such, the benefit of the doubt rule is not for application, and the claim for entitlement to service connection for a bilateral hearing loss disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.