Citation Nr: 1117289 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 02-07 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hearing loss. ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1950 to June 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington D.C. to schedule the Veteran for a VA audiology examination to determine the etiology of his claimed hearing loss. That action completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Hearing loss did not have onset during the Veteran's active service or within one year of separation from active service, and is not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). "To establish a right to compensation for a present disability, a Veteran 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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss, as is claimed here, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2010). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. As in all claims for service connection, it is the Board's duty to assign probative value to the evidence and then to weigh the evidence favorable to the veteran's claim against the evidence unfavorable to the veteran's claim. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). If the favorable evidence outweighs the unfavorable evidence or if the favorable and unfavorable evidence are in relative equipoise, the Veteran's claim must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 (2010). The Veteran's service treatment records have been destroyed and are no longer available. Therefore, the Board has a heightened obligation to provide an explanation of reasons and bases for its findings, and consider the benefit-of-the-doubt rule under 38 U.S.C.A. § 5107(b). See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was scheduled for two audiology examinations in February 2007. The Veteran cancelled the first examination. He was then rescheduled for another examination and again failed to report, offering no explanation for missing that examination. Pursuant to the July 2009 Board remand, the Veteran was again scheduled for a VA audiology examination in November 2009. Again, he failed to appear. In a March 2010 statement submitted to the RO, the Veteran explained that he did not receive notification of the scheduled examination and provided an updated address. Based on this explanation, the RO scheduled the Veteran for an examination in June 2010 and sent the examination notification letter to the new address provided. He failed to appear. Since that time, the RO has undertaken considerable effort to schedule the Veteran for a VA examination pursuant to the July 2009 Board remand. However, the Veteran has repeatedly failed to report to the scheduled VA examinations, the most recent notice of which was sent to his last known address of record. Thereafter, the RO could not ascertain the Veteran's whereabouts. The case at hand is an original compensation claim. See Turk v. Peake, 21 Vet. App. 565, 569 (2008). When a claimant fails, without good cause, to report for a VA examination in conjunction with an original claim for disability compensation benefits, VA must decide the claim based on the evidence of record. 38 C.F.R. § 3.655(a), (b). The Board must note the VA's repeated efforts to obtain a VA examination to help the Veteran with his claim, with no results directly as a result of the Veteran's failure to attend the examinations after repeated attempts by the RO to obtain such. It is also a well-settled principle that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). One duty of a claimant is to advise VA of his or her current whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993). As stated in Hyson, there is no burden on the part of VA to turn up heaven and earth to find a claimant, and the duty to assist is satisfied when VA has investigated all possible and plausible addresses in an attempt to locate a claimant at potential known alternate addresses. The Board cannot delay the adjudication of a Veteran's case indefinitely or remand a case to the RO repeatedly. At some point, the case must be adjudicated. Accordingly, the Board must decide this case based upon the evidence of record. This record fails to include any medical evidence, or any specific lay evidence, which could support a claim for service connection for hearing loss. The evidence of record shows that the veteran received VA medical treatment following service. In June 2000, a VA outpatient treatment report indicated that upon audiometric testing, the Veteran had a mild sloping to moderately severe sensorineural hearing loss in the left ear and a mild sloping to severe sensorineural hearing loss in the right ear. Word recognition was good bilaterally. The examiner also noted that the Veteran had a positive history of both military and occupational noise exposure. The Veteran reported wearing protective devices in the occupational setting. The Board notes that the record is unclear as to whether the Veteran has a hearing loss disability for VA compensation purposes. However, even assuming, arguendo, that the June 2000 treatment report indicated a hearing loss disability for VA purposes, the record does not establish a nexus or relationship between the Veteran's hearing loss and his active service. In short, there is no evidence that the hearing loss was incurred in or aggravated by his military service. The post-service medical records, as a whole, provide evidence against this claim because they do not link the Veteran's hearing loss to an event that occurred in service, or even indicate such a link. Nor is there any evidence providing an opinion that his hearing loss was aggravated by noise exposure during service. The June 2000 treatment record noted that the Veteran did have noise exposure in service; however, no opinion was provided stating that such noise exposure caused his hearing loss. In this respect, a VA examination with a medical opinion as to the etiology of the Veteran's claimed hearing loss would have greatly assisted the Board in rendering a decision on this appeal. Significantly, however, for 47 years following service, there was no documented, objective evidence or complaints of, or treatment for, hearing loss. This long lapse of time (almost five decades) is evidence against a finding that any hearing loss had its onset during service or is related to his service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). To the extent that the Veteran contends that his hearing loss is related to his active service, a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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. Id. Similarly, the U.S. Court of Appeals for Veterans Claims (Court) has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran's contentions regarding a relationship between his claimed hearing loss and his military service are not statements about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis. Rather, these contentions are statements of causation. Such statements clearly fall within the realm of opinions requiring medical expertise. The Veteran has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the cause of the claimed disability and are entitled to low probative value, clearly outweighed by the evidence in this case against the claim. Finally, since there is no evidence that the Veteran suffered hearing loss within one year of discharge, the provisions of 38 C.F.R. § 3.307 and § 3.309 are inapplicable. Based on the above, the preponderance of the evidence of record is against a grant of service connection for hearing loss, and his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in January 2001, December 2004, and December 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical records identified by the Veteran. The Board notes that the Veteran's service treatment records are not available. However, it appears that the RO searched alternative sources in an attempt to assist the Veteran in proving his service-connection claims. Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). Assistance shall also include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). The Veteran was repeatedly scheduled for a VA examination over the course of several years; he repeatedly failed to report to the scheduled examinations. As discussed above, the duty to assist is not a one-way street. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs