HEARING LOSS

P.M. DILORENZO · 2026 · Case ID: A26040682

DENIED

Summary

The Veteran, a Navy veteran who served from April 1992 to March 2000, appeals the denial of service connection for bilateral hearing loss. The Board reviewed the case based on evidence available as of the June 2021 agency of original jurisdiction (AOJ) decision. The Veteran's claim for bilateral hearing loss was denied because the evidence did not establish a current hearing loss disability meeting VA criteria. A March 2014 VA examination showed audiometric thresholds below the 40 dB or 26 dB criteria for hearing loss, and speech discrimination scores were 100% in both ears. A subsequent March 2020 VA examination was deemed unreliable due to inconsistent responses and a positive Stenger test, indicating the Veteran's responses were not indicative of organic hearing loss. While the Veteran reported symptoms of hearing difficulty, the Board noted that lay testimony cannot substitute for the medical expertise and audiological testing required to meet VA standards for hearing loss. As the persuasive evidence was against the claim, the benefit-of-the-doubt rule did not apply. Service connection for bilateral hearing loss is denied.

Rationale

March 2014 VA exam did not meet criteria for hearing loss; March 2020 VA exam unreliable due to inconsistent responses; Lay testimony cannot substitute for medical expertise/testing

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

220901-644079

Full Decision Text

Citation Nr: A26040682
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 220901-644079
DATE: April 30, 2026

ORDER

Service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran does not have a current hearing loss disability in either ear.

CONCLUSION OF LAW

The criteria for service connection for hearing loss of the left or right ear have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from April 1992 to March 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2021 decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). That decision is a higher-level review decision of an AOJ decision issued in June 2021. See 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2500(a)(1)(i), 3.2601. The Veteran filed a Board Appeal (Notice of Disagreement) in September 2022 and elected the Direct Review option. See 38 U.S.C. §§ 7105, 7113(a); 38 C.F.R. §§ 20.202, 20.203.

Under the Direct Review option, the Board's decision will be based on the evidence of record at the time of the AOJ decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.301, 20.801(a). In the case of a higher-level review decision, the evidentiary record is limited to the evidence of record as of the date that the AOJ issued notice of the prior decision under review. 38 U.S.C. § 5104B(d); 38 C.F.R. § 3.2601(f).

Accordingly, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision, which was subject to higher-level review in the October 2021 decision on appeal. See id.; see also 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.300(a), 20.301, 20.801(a). If evidence was submitted by the Veteran or otherwise added to the claims file since the AOJ decision on appeal, the Board has not considered it at this time. See id.

If the Veteran would like VA to consider any evidence that the Board could not in consider in this decision, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link ("nexus") between the current disability and the disease or injury incurred or aggravated in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance-which includes but is not limited
a link ("nexus") between the current disability and the disease or injury incurred or aggravated in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance-which includes but is not limited to equipoise-the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt-rule does not apply. Id. at 781-82.

Entitlement to service connection for bilateral hearing loss.

The Veteran's claim for service connection for bilateral hearing loss must be denied as the evidence does not show a current hearing loss disability in either ear.

Impaired hearing is defined as a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) 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; or when 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; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

A March 2014 VA examination shows that, with respect to both ears, audiometric testing yielded puretone thresholds below 40 dB at the frequencies from 500 Hz through 4000 Hz. Further, the Veteran did not have a puretone threshold of 26 dB or higher at three or more of these frequencies, or indeed at any of these frequencies. Finally, speech discrimination testing using the Maryland CNC word list resulted in scores of 100% for both ears.

Accordingly, the testing results do not meet VA's criteria for establishing a hearing loss disability in either ear for compensation purposes. See 38 C.F.R. § 3.385.

The March 2020 VA examination report reflects that the examiner could not test the Veteran's puretone thresholds. The examiner explained that the Veteran was re-instructed due to inconsistent responses. The speech discrimination threshold and puretone threshold average were not in agreement. A positive Stenger test was obtained, which was inconsistent with organic hearing loss. The examiner concluded that the Veteran's responses were considered unreliable and not valid for rating purposes, as they were not indicative of organic hearing loss. The examiner recorded speech discrimination scores of 76% in the right ear, and 84% in the left ear, but found that use of these scores is not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of the puretone average and speech discrimination scores inappropriate.

In short, the March 2020 VA audiologist found that the Veteran did not provide reliable responses during the examination, including on re-instruction. Therefore, any results reported in this examination report are not reliable and are inadequate in terms of determining whether the Veteran has a current hearing loss disability under 38 C.F.R. § 3.385. The Board notes that while VA has a duty to assist, the Veteran also has a duty to cooperate in the development of the evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (noting that the claimant has a duty to cooperate in developing the evidence). Absent a showing of good cause, any refusal to participate or cooperate during a VA examination is akin to a failure to report for a VA examination. See 38 C.F.R. § 3.655. As such, remand to schedule the Veteran for an additional VA examination is not warranted.

The Board acknowledges the Veteran's report of symptoms of hearing loss. He stated that he has difficulty understanding speech in the presence of background noise and has trouble communicating on the telephone. He also reported difficulty hearing everyday sounds such as birds chirping, whistles, sirens, safety equipment, and warning sounds. In Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit held that even in the absence of a diagnosis, there is a current disability where a veteran experiences functional impairment from symptoms of a disorder. 886 F.3d 1356, 1368 (Fed. Cir. 2018). However, since VA has specifically defined what constitutes a hearing loss disability in 38 C.F.R. § 3.385, the Federal Circuit's holding in Saunders is not applicable to a claim for service connection for hearing loss. See McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (concluding that § 3.385 "reasonably interpreted what constitutes a hearing disability").

In reaching this determination, the Board does not question the sincerity of the Veteran's reports of difficulty hearing and acknowledges that, as a lay person, he is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Unfortunately, as a layperson, the Veteran does not have the requisite expertise to provide a competent opinion as to whether he has a current hearing loss disability in accordance with VA standards, as such matters require medical expertise and audiological testing. Absent any current diagnosis of hearing loss in accordance with VA standards, an award of service connection for hearing loss is not warranted.

Because a current hearing loss disability is not shown in either ear, the criteria for service connection have not been met. See Holton, 557 F.3d at 1366. As the persuasive evidence is against the claim, the evidence is not in approximate balance or nearly equal; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 21 F.4th at 781-82; 38 U.S.C. § 5107.

P.M. DILORENZO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Rutkin

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.

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