Citation Nr: 1322782 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-02 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 1988 and from December 2003 to February 2005, with additional periods of inactive service. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that left ear hearing loss was incurred in or aggravated during the Veteran's first period of active service, or that sensorineural hearing loss manifested to a compensable degree within one year following separation from that period of active service. 2. The evidence of record shows that the Veteran's left ear hearing loss preexisted his second period of active service, and there is no competent evidence of record that it underwent a permanent increase in the underlying severity during that period of service which was not due to the natural progress of the disease CONCLUSION OF LAW Left ear hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in September 2006, June 2008, February 2010, March 2010, and July 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA obtained an examination with respect to the claim in April 2007. Unfortunately, the VA examiner did not provide a medical nexus opinion in conjunction with this examination. The Board subsequently remanded the Veteran's claim in June 2011, in part so that an attempt could be made to provide the Veteran with an additional medical examination with a medical nexus opinion. This additional medical examination was properly scheduled for August 2, 2011. On August 1, 2011, the Veteran called the VA medical center and informed it that he could not report for the examination at that time due to his work schedule. The Veteran was instructed to call the RO when he was ready and available for an examination. A notation from the RO stated that the Veteran never made an attempt to reschedule this examination. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, VA attempted to provide the Veteran with a VA medical examination to assist him in obtaining evidence favorable to his claim, but the Veteran failed to appear for the examination and then failed to reschedule the examination, despite being specifically asked to do so by VA. Thus, the Board is satisfied that there was substantial compliance with its June 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). VA regulations specifically state that, when a veteran fails to report, without good cause, for a VA examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2012). The Veteran did provide an explanation for his failure to report for the VA examination scheduled on August 2, 2011. However, the Veteran was specifically informed at that time that he needed to contact the RO to reschedule the examination. Not only did the Veteran never do this, neither the Veteran nor his representative have offered any explanation for this failure, let alone one that demonstrates good cause. As such, the Board finds that the Veteran has not demonstrated good cause for his failure to report for a VA examination in conjunction with his claim of entitlement to service connection for left ear hearing loss. Accordingly, the Board shall rate the Veteran's claim based on the evidence of record. Id. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For certain chronic disorders, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes 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 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disability become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran's service treatment records include audiograms which show that the Veteran did not have left ear hearing loss for VA purposes in December 1987 and January 1992. 38 C.F.R. § 3.385. A November 2003 service audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT -5 0 0 50 35 Accordingly, the medical evidence of record demonstrates that the Veteran was found to have preexisting left ear hearing loss on the examination conducted prior to his entrance into his second period of active service. The Veteran's service treatment records are negative for any complaints or treatment for hearing loss during his second period of active service. In a January 27, 2005 service post-deployment health assessment report, the Veteran did not list any complaints of hearing loss and he stated that during his deployment his health stayed about the same or got better. After separation from service, in a June 2006 claims form the Veteran reported that his hearing loss began on January 31, 2005. An April 2007 VA audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 65 55 The medical evidence of record shows that the Veteran was found to not have left ear hearing loss for VA purposes in January 1992. There is no evidence of record that disputes this finding and the Veteran does not claim that his current left ear hearing loss is related to his first period of active service. Instead, the Veteran claims that he developed left ear hearing loss as a result of his second period of active service, from December 2003 to February 2005. However, left ear hearing loss was found on military examination in November 2003, prior to the Veteran's entry into his second period of active service. Accordingly, the Veteran was noted to have preexisting left ear hearing loss upon his entry into his second period of service. As such, with respect to left ear hearing loss, the Veteran was not presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002). The medical evidence of record shows that there was an increase in the Veteran's left ear puretone thresholds of between 10 and 20 decibels at all frequencies, between November 2003 and April 2007. In this regard, the Board notes that the Veteran served with a field artillery unit as a fire support specialist. As such, there is evidence that the Veteran may have been exposure to acoustic trauma during his second period of active service. However, the increase in the Veteran's left ear hearing loss was not found until over two years after his separation from service. At that time, the Veteran reported that he was presently employed as an electrician and was exposed to significant noise levels while at work, as well as recreational noise exposure from hunting. As such, there is also evidence of record that the Veteran had significant post-service noise exposure and his increased left ear hearing loss was not found until he had been exposed to that post-service noise for over two years. Unfortunately, there is no medical evidence of record which provides a medical opinion regarding the etiology of the Veteran's currently diagnosed left ear hearing loss. However, as discussed above, VA has attempted to obtain such evidence and its inability to do so was the result of the Veteran's failure to report for a VA examination without good cause. As such, the Veteran's claim stands in its current state and must be rated based on the evidence of record. 38 C.F.R. § 3.655. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 C.F.R. § 3.306 (b) (2012). The Board finds that the preponderance of the evidence of record shows that the Veteran's preexisting left ear hearing loss was not aggravated by the Veteran's second period of active service. 38 U.S.C.A. § 1111. The Veteran's service treatment records are negative for any complaints or treatment for left ear hearing loss during his second period of active service. The Veteran also did not report any left ear hearing loss on his January 2005 service post-deployment health assessment report. Indeed, the only evidence of record that the Veteran's left ear hearing loss underwent any increase in symptomatology during his second period of active service are the Veteran's own statements. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In this case, the Veteran is competent to report that he experienced left ear hearing loss. However, the Veteran is not competent to report that the symptoms he experienced were manifestations of a permanent increase in the underlying severity which was not due to the natural progress of the disease. Such findings constitute a medical opinion, which the Veteran is not competent to provide. Id. In addition, the Veteran's own actions have prevented VA from obtaining such a medical opinion. Therefore, the Board finds that there is no competent and credible evidence of record that the Veteran's preexisting left ear hearing loss underwent a permanent increase in the underlying severity which was not due to the natural progress of the disease. As such, the preponderance of the evidence of record shows that the Veteran's currently diagnosed left ear hearing loss was not aggravated during his second period of active service. The Board finds that the preponderance of the evidence is against a finding that left ear hearing loss was incurred in or aggravated during the Veteran's first period of active service, or that it manifested to a compensable degree within one year following separation from that period of active service. The Board further finds that the evidence of record shows that the Veteran's left ear hearing loss preexisted his second period of active service, and there is no competent evidence of record that it underwent a permanent increase in the underlying severity during that period of service which was not due to the natural progress of the disease. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim is denied. ORDER Service connection for left ear hearing loss is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs