Citation Nr: 1314975 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-21 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from September 1995 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. The Veteran was scheduled for a videoconference hearing at the RO before a Veterans Law Judge in April 2013 and failed to appear. He has not shown good cause for his failure to appear. FINDING OF FACT The Veteran has not been shown to have a current hearing loss of service origin. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Assist and Notify 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.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's status has been substantiated. In a February 2008 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Veteran was also provided with notice as to the disability rating and effective date elements of the claim in the February 2008 letter. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All evidence necessary to decide this claim has been obtained insofar as possible. The Veteran has not made VA aware of any other outstanding evidence. As to providing the Veteran with a VA examination, the Board notes that the Veteran was scheduled for a VA examination in September 2012 and failed to appear for the examination. He has not provided good cause as to why he failed to appear. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board further observes that the Veteran was scheduled for a VA videoconference hearing at the RO in April 2013 and did not report for the requested hearing. He has also not provided good cause for his failure to appear at the scheduled hearing. The Veteran's lack of sufficient cooperation is a factor in VA's decision to adjudicate the current claim without further development of the claim. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through testimony at a hearing if so desired. As noted above, he failed without good cause to appear for a VA examination and for a scheduled hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. The disorder at issue, namely hearing loss, if it is sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker, 708 F.3d 1331. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the 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 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. 38 C.F.R. § 3.385. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). The Veteran was scheduled for a VA audiological examination in September 2012 and failed to report for the scheduled examination and has provided no reason for his failure to report. As such, the appeal will be considered based upon the evidence of record. The Veteran maintains that he was exposed to acoustic trauma in service which caused his current hearing loss. He has indicated that he worked on the flight line of an aircraft carrier for three years, which is the cause of his claimed hearing loss. A review of the Veteran's service treatment records reveals that at the time his February 1995 service entrance examination, testing revealed pure tone thresholds, in decibels, of 0, 10, 0, 0, and 0 for the left ear; and 10, 0, 0, 0, and 0, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a September 1995 audiological evaluation, testing revealed pure tone thresholds, in decibels, of 10, 0, 0, -5, and -10 for the right ear; and 15, 10, -5, -5, and 0, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At a May 1996 audiological evaluation, testing revealed pure tone thresholds, in decibels, of 0, 0, 0, 5, and 0 for the right ear; and 5, 10, 0, 5 and 0 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At a January 1997 examination, testing revealed pure tone thresholds, in decibels, of 0, 5, 0, 0, and -5 for the right ear; and 5, 5, 0, 0, and 0 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a December 1997 examination, testing revealed pure tone thresholds, in decibels, of 0, 0, 0, 0, and 0 for the right ear, and 0, 5, 0, 0, and 0 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of the Veteran's July 1998 service separation examination, testing revealed pure tone thresholds, in decibels, of 5, 0, 0, 5, and -5 for the right ear, and 5, -5, 0, 0, and -5 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On his July 1998 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss. On November 1998 and June 1999 Naval Reserve Reports of Medical History, the Veteran again checked the "no" boxes when asked if he had or had ever had hearing loss. There were no complaints or findings of hearing loss in the years immediately following service. In his January 2008 application for compensation, the Veteran indicated that he was first seen in January 2008 for complaints of hearing loss. At the time of a February 2008 VA audiological consult, the Veteran reported having bilateral hearing loss and stated that he had to turn up the television. The Veteran reported service-related noise exposure (aircraft, helicopter, flight deck). The examiner indicated that audiological testing revealed normal hearing in both ears. Word recognition was also reported as excellent. As noted above, the Veteran was scheduled for a VA examination and did not report and has provided no good cause for his failure to appear. Evidence obtained from the scheduled examination may have been beneficial to the Veteran's claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to some time in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). The service treatment records do not show hearing loss in service as all puretone thresholds were less than 20 decibels. See Hensley, 5 Vet. App. at 157. There was no diagnosis of hearing loss in service. As noted above, the Veteran reported a history of in-service noise exposure as the result of his duties performed during service, which the Board would not dispute. However, absent a showing of current disability, service connection cannot be granted. While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The weight of the competent and probative evidence, including audiology examinations, is to the effect that the Veteran does not currently have hearing loss as defined in 38 C.F.R. § 3.385. While the audiometric testing results were not noted on the February 2008 VA audiological consultation report, the report clearly indicated that testing showed normal hearing in both ears and excellent word recognition scores. As indicated above, the Veteran did not report for a VA examination in September 2012 which would have provided audiometric results. Pursuant to 38 C.F.R. § 3.655, the Board must adjudicated the claim on the evidence of record, which in this case does no demonstrate a current hearing loss for VA compensation purposes. As a current disability has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. There is no current competent evidence of hearing loss within the meaning of 38 C.F.R. § 3.385. The preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs