Citation Nr: 1338612 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-21 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to July 1957. He also had service with the United States Naval reserve (hereinafter "USNR") until October 1961. This appeal comes before the Board of Veterans' Appeals (hereinafter "Board") from an August 2008 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Cleveland, Ohio. Jurisdiction of his claim was eventually transferred to the Los Angeles, California RO, which, inter alia, denied service connection for left ear hearing loss and tinnitus. In August 2012, the Veteran was scheduled for a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ"); however, he failed to report for the scheduled hearing. He has not provided good cause for not appearing for the hearing and has made no attempt to reschedule the hearing. Thus, the Board finds the Veteran's request for a Board hearing to be withdrawn and the Board will proceed with its review on the present record. See 38 C.F.R. 20.702(d) (2013). In November 2012 and June 2013, the Board, inter alia, remanded the appeal to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, D.C. for further development of the record, to include obtaining any outstanding records from the Social Security Administration (hereinafter "SSA") and obtaining VA examination and medical opinion. The Board finds that there has been substantial compliance with the November 2012 and June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (hereinafter "Court") or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). In this regard, the AMC has attempted to obtain SSA records in January 2013, with negative response, and to obtain a VA examination and medical opinion in June 2013. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in January 2013, which was considered by the AMC in the September 2013 supplemental statement of the case (hereinafter "SSOC"). As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. §§ 20.800, 20.1304(c) (2013). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The Veteran, without good cause, failed to report for his scheduled VA examination in June 2013, in conjunction with his claims for service connection. 3. The Veteran does not have a current disability of left ear hearing loss for VA purposes. 4. The Veteran's current disability of tinnitus is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385, 3.655 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.655 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (hereinafter "VCAA"), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a July 2008 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The July 2008 letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. at 473. He has not alleged any prejudice with regard to any notice deficiency during the adjudication of his claim; hence further VCAA notice is not required with regard to the increased rating appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, and VA records have been obtained and associated with the claims file. As noted in the Introduction, an attempt to obtain SSA records was made in January 2013, with negative response. Also, as mentioned in the Introduction, the issues of service connection for left ear hearing loss and tinnitus were remanded by the Board in November 2012 and June 2013 for additional development of the record, including obtaining a VA examination and medical opinion. VA administrative records show that the Veteran failed to report for scheduled VA audiological examinations in January 2012, March 2012 and June 2013. 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. An exception occurs when there is good cause for the failure to report. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, etc. 38 C.F.R. § 3.655(a). In the June 2013 remand, the Board noted that VA clinical records from April 2009 that were obtained subsequent to the Board November 2012 remand, now located in the Veteran's Virtual File, show that he had been diagnosed with dementia, clinically indicated as probable Alzheimer's disease. As recently as November 2012, it was reported that the Veteran had been living with his son, and was then he was placed in a "Vets home." The Board directed that the RO/AMC make certain to contact the Veteran's son, who was appointed as his conservator, when attempting to schedule the Veteran for a VA examination. While the Veteran's son was directly contacted in June 2013 and asked to assist with getting his father to the VA examination in June 2013, the record shows that the Veteran failed to report without providing good cause for doing so. 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 claims of entitlement to service connection for left ear hearing loss and tinnitus. It is noted that the Veteran was given 3 opportunities to present for an examination. Accordingly, the Board shall evaluate the Veteran's claims based on the evidence of record. Id. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2013). The Merits of the Claims Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). 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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The determination as to whether the requirements for service connection 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Specific to claims of service connection for hearing loss, service connection may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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, 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 standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for left ear hearing loss and tinnitus are not warranted. In this regard, there is no evidence of hearing problems in service. Although there is post-service evidence of left ear hearing loss contained within VA treatment records, there is no competent medical evidence of record showing current diagnosis of hearing loss for VA purposes, as established by 38 C.F.R. § 3.385, at any time during the pendency of the appeal. Congress specifically limits entitlement for a service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Simply put, in the absence of proof of present disability, namely left ear hearing loss disability, there can be no valid claim. The Board has also considered the Veteran's own statements made in support of his claim for left ear hearing loss. Although he is competent to generally report symptoms of left ear hearing loss, under 38 C.F.R. § 4.85, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. There is no evidence that the Veteran possesses such expertise, and he is not competent to determine if his left ear hearing loss meets the thresholds of 38 C.F.R. § 3.385. Although lay persons are nonetheless competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the nature and etiology of any left ear hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As pertains to the claim for tinnitus, the Board finds the Veteran's report of in-service noise exposure to be competent and credible, and concedes he had in-service noise exposure associated with firing naval guns aboard the U.S.S. Columbus, a heavy cruiser, as his service records verify his assignment to the U.S.S. Columbus and his duties aboard that ship. The service treatment records are without findings of any tinnitus. VA audiology notes, dated in May 2001 and April 2007, reflect the Veteran reported tinnitus in both ears, but greater in the left ear. He also noted that he experienced head trauma after sustaining a broken right facial bone following a bicycle accident. The Veteran denied all other ear related symptoms and denied occupational noise exposure, but reported in-service noise exposure. The Veteran's lay statements are sufficient to establish the presence of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). However, he is not competent to provide an opinion as to the etiology of his tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the clinical record suggests that his tinnitus could be related to head trauma sustained following a bicycle accident and not due to his in-service noise exposure. While the Veteran has asserted that he experienced a continuity of symptomatology related to tinnitus since service, the clinical and lay record fail to support this contention. For these reasons, the preponderance of the evidence is against finding of any current left ear hearing loss for VA purposes, and against a finding of any tinnitus that is related to the Veteran's in-service noise exposure. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims. ORDER Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs