HEARING LOSS

Summary

The Veteran served on active duty from April 1969 to February 1971. This case involves an appeal for service connection for bilateral hearing loss and a prostate disability. The Board denied service connection for bilateral hearing loss, finding the persuasive evidence of record was against a current hearing loss disability as defined by VA regulations. While the Veteran's service treatment records and subsequent audiological assessments showed some inconsistencies and cognitive issues affecting testing reliability, the most recent VA opinion concluded that objective testing was not consistent with damage from conceded noise exposure. The examiner found the findings consistent with normal cochlear function or age-related changes, ultimately concluding no hearing loss for VA purposes. The Board applied the preponderance of evidence standard, finding against the claim. Service connection for a prostate disability was remanded for further development. The VA was directed to obtain outstanding records, including clarifying the likely cause of the prostate disability and addressing the Veteran's contention of urinary problems beginning shortly after Vietnam service. The examiner must also consider submitted medical literature and provide a detailed opinion on the nexus to service, including herbicide exposure, and whether the disability is at least as likely as not related to service.

Rationale

No current hearing loss disability for VA purposes; Objective testing inconsistent with conceded noise exposure; Persuasive evidence against claim

Full Decision Text

Citation Nr: 25003784
Decision Date: 03/19/25	Archive Date: 03/19/25

DOCKET NO. 16-34 223
DATE: March 19, 2025

ORDER

Service connection for bilateral hearing loss is denied.

REMANDED

Service connection for a prostate disability is remanded.

FINDING OF FACT

The persuasive evidence of record is against finding that the Veteran has a current hearing loss disability for VA purposes.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty from April 1969 to February 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision. In February 2020, a hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Board remanded this matter in September 2020 for further development.

The Board's duties under The Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied; the Veteran has had ample opportunity to respond and has not alleged any notice or development has been inadequate. The July 2022 medical opinion obtained on remand is responsive to the Board's prior remand directives and includes a thorough review of the relevant medical evidence with a detailed rationale. Moreover, the Veteran and his wife have been contacted repeatedly over recent years to assess his willingness to report for further formal examinations, and they have repeatedly indicated he does not want to do so, with the most recent communications in September and October 2021 indicating he is non-verbal and "barely understands what anyone is stating to him." They clearly and specifically requested that VA adjudicate his pending claims based on the evidence of record.

The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

1. Service connection for bilateral hearing loss

To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a pertinent event or injury in service; 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, 1166-1167 (Fed. Cir. 2004). In evaluating these requirements, VA must analyze all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Sensorineural hearing loss, an organic disease of the nervous system, is also subject to presumptive service connection as a chronic disease under 38 U.S.C. § 1112 if manifested to a compensable degree within the first post-service year. See also 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection for such disabilities may also be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b).

Crucially, in the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the term "disability" is not generally defined by any statute, the United States Court of Appeals for Veterans Claims (Court) has held that "'disability' as it is used in section 1110 'should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself." Palczewski v. Nicholson, 21 Vet. App. 174, 178 (2007) (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Separ
. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the term "disability" is not generally defined by any statute, the United States Court of Appeals for Veterans Claims (Court) has held that "'disability' as it is used in section 1110 'should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself." Palczewski v. Nicholson, 21 Vet. App. 174, 178 (2007) (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Separately, the Court has also held that evidence of a disability upon filing a claim for VA disability compensation, or at any time during the pendency of that claim, satisfies this requirement. See McClain v. Nicholson, 21 Vet. App. 319 (2007).

38 C.F.R. § 3.385 specifically defines a hearing loss disability for VA purposes as 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. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the persuasive evidence of record is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

Here, the primary question is whether the Veteran has a current hearing loss disability as defined in 38 C.F.R. § 3.385. An April 2014 VA examination report did note sensorineural hearing loss, but specifically notes that the test results then were inconsistent. The prior remand in this matter was specifically focused on clarifying whether a bilateral hearing loss disability existed. 

In April 2015, VA records show an audiological consultation found pure tones were "within normal limits" from 250 to 4000 Hertz bilaterally. A July 2015 record notes an assessment of hearing loss with no audiometric findings to support it. Treatment records from August 2015 and March 2016 show hearing was grossly intact. In February 2018, he had another audiological assessment (the first since April 2015) that showed pure tone thresholds were within normal limits at 1000 Hertz on the right and from 500 to 4000 Hertz on the left, and that the likely diagnosis was of normal lower frequencies and bilateral high frequency sensorineural hearing loss. However, the report also noted that "all thresholds obtained today [were within normal limits]." In April 2018, VA records show poor cooperation by the Veteran resulting in only a partial audiogram, and the provider noted he had cognitive issues and was difficult to test. However, when combining the results obtained at the time, the provider felt his hearing was "within normal ranges or near normal ranges through 4000 [Hertz] in both ears."

The July 2022 VA opinion obtained on remand conducts a detailed review of the relevant medical evidence and concludes that his clinical findings are "not consistent with objective testing that would indicate hearing loss from noise exposure," despite conceding noise exposure in service. The examiner noted no reliable audiograms at separation, but that a 2014 examination 43 years post-service showed objective findings "consistent with normal cochlear function" and was therefore "not consistent with damage to the inner ear that would be consistent with damage from conceded noise exposure." She adds that he did not seek evaluation until that time and that subsequent evaluations in April 2018 noted poor reliability on subjective tests and abnormal objective tests. She also noted an April 2021 examiner (presumably referring to the April 2018 record described above, as the findings match those in that record and there does not appear to be an April 2021 audiological evaluation) reviewing a February 2018 evaluation found his hearing was within normal limits through 4000 Hertz in both ears. The examiner then goes on to state that provider felt inconsistent results could be related to Alzheimer's disease or from previous strokes, and that perceived hearing loss could be related to difficult processing from those conditions. Ultimately, she felt the evidence indicates "no hearing loss" for VA
 not seek evaluation until that time and that subsequent evaluations in April 2018 noted poor reliability on subjective tests and abnormal objective tests. She also noted an April 2021 examiner (presumably referring to the April 2018 record described above, as the findings match those in that record and there does not appear to be an April 2021 audiological evaluation) reviewing a February 2018 evaluation found his hearing was within normal limits through 4000 Hertz in both ears. The examiner then goes on to state that provider felt inconsistent results could be related to Alzheimer's disease or from previous strokes, and that perceived hearing loss could be related to difficult processing from those conditions. Ultimately, she felt the evidence indicates "no hearing loss" for VA purposes.

Under the circumstances, the Board finds the most persuasive evidence of record is against finding the Veteran has a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 and, therefore, the benefit of the doubt rule does not apply and the appeal in this matter must be denied as a matter of law.

REASONS FOR REMAND

1. Service connection for a prostate disability is remanded.

The prior remand specifically directed any VA opinion obtained to address medical literature the Veteran submitted in support of his claim, and the opinion obtained on remand failed to comply. Moreover, the Board notes that the Veteran alleged in April 2014, long before records established that he began to have severe cognitive decline related to Alzheimer's disease and other neurological problems, that he started having urinary problems within six months of returning home from Vietnam in the 1970s, but no opinion has addressed this contention, least of all the most recent opinion obtained on remand that found no evidence supporting an onset in service. Clarification is needed.

The matter is REMANDED for the following action:

1. Obtain any outstanding and relevant VA or adequately identified private medical records (i.e., those not already of record), to include asking the Veteran to provide the requisite identifying information and authorizations needed where applicable.

2. Forward the record to an appropriate physician to clarify the likely cause of his prostate disability. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following:

(a.) Is it at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that such disability is related to the Veteran's military service, to include herbicide exposure therein?

The examiner MUST consider and discuss the medical literature the Veteran has submitted in support of this appeal in February 2020 as well as his lay reports that urinary problems he associates with his prostate problems began within 6 months after returning home from Vietnam in the 1970s.

All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require further clarification. 

 

 

T. Sherrard

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Yuan, 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.