Citation Nr: 18141635 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-43 985 DATE: October 11, 2018 ORDER Entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. On August 29, 2018, prior to the promulgation of a decision by the Board, the Veteran indicated in a written statement that he was withdrawing the appeal as to the claims for entitlement to service connection for tinnitus. 2. The Veteran does not have bilateral hearing loss for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1154 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1976 to September 1977. In its November 2016 decision, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for additional development, specifically to afford the Veteran a VA examination. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, the RO scheduled the Veteran for an examination and, following his failure to report for the examination, readjudicated the claim based on the evidence in the record. The Veteran has not given good cause for his failure to appear. Thus, the Board finds that the RO substantially complied with the November 2016 remand directives. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran submitted a statement in August 2018 wherein he explicitly expressed his desire to withdraw this appeal. Accordingly, there remains no allegation of errors of fact or law for appellate consideration. Significantly, the Veteran’s August 2018 correspondence indicating his intent to withdraw his entire appeal is explicit, unambiguous, and done with a full understanding of the consequences of such action on his part. Warren v. McDonald, 28 Vet. App. 214, 218 (2017) (citing DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). As such, there remains no allegation of error of fact or law for appellate consideration with respect to the claims herein on appeal. The Board does not have jurisdiction to review the claim, and it is dismissed. Duties to Notify and to Assist As noted above, the Board remanded this issue to the RO in November 2016 to schedule the Veteran for a new VA examination to determine the presence and etiology of his claimed bilateral hearing loss. An August 2018 compensation and pension examination inquiry indicates that the Veteran failed to report to his scheduled August 15, 2018 VA examination. There is no indication in the record that the notice of the examination was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of administrative regularity to RO actions). In this regard, however, the Board acknowledges that the actual notice letter regarding the scheduled VA examination is not of record. In May 2013, the United States Court of Appeals for Veterans Claims (Court) held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran, as an example, of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while that appeal was pending, the United States Court of Appeals for the Federal Circuit (Federal Circuit), a higher court, issued Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 2013). In Kyhn the Federal Circuit vacated the lower Court’s Kyhn II decision and, in doing so, held that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. The lower Court had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit held that the Court could not consider such evidence because judicial notice does not extend to affidavits from “a party’s employees regarding otherwise unknown internal procedures.” (slip op. at 7). The Federal Circuit Court went on in Kyhn to further hold that the Court had done impermissible fact-finding in the first instance. The Federal Circuit essentially drew a distinction between “instances where the presumption of regularity was premised upon independent legal authority” and instance where it was based upon “evidentiary findings.” (slip op. at 10). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, no receipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Moreover, as already explained, this presumption of administrative regularity does not diminish the claimant’s responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). However, this presumption is rebuttable, notably as an example when there is clear evidence of nondelivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located. Here, the report from the VA medical facility notes that the scheduled examination was canceled because the Veteran had failed to respond. The August 2018 compensation and pension examination inquiry indicated that the Veteran was scheduled for, but failed to report to, the scheduled examination and that evidence expected from this examination might have been material to the outcome of the claim on appeal. There is no record in the claims folder of a response from the Veteran and clearly therefore no explanation. There is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. Thus, the Board finds that additional efforts to re-schedule his examinations would be futile. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Notification for VA purposes is a written notice sent to the claimant’s last address of record. See 38 C.F.R. § 3.1 (q) (2018). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, sensorineural hearing loss is listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 4000 hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss The Veteran essentially asserts that his bilateral hearing loss is related to his active service. Service treatment records are silent as to any complaint, treatment, or diagnosis of hearing loss. A July 2014 VA audiologic examination report recorded pure tone thresholds for the Veteran’s right and left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 15, 10, 15, 15, and 25 in the right ear, and 20, 15, 20, 25, and 25 in the left ear. The speech recognition score using the Maryland CNC Test for the right ear was 94 percent and was 96 percent in the left ear. The examiner opined that the Veteran had hearing within normal limits per VA guidelines for both ears. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss. No evidence of record demonstrates that he suffers bilateral hearing loss for VA compensation purposes. As mentioned above, the Veteran’s claim was remanded in November 2016 so that he could be afforded a VA examination and opinion. The Veteran failed to report. The Veteran provided no reason for missing his scheduled examination. Thus, his claim is evaluated based on the evidence of record. 38 C.F.R. § 3.655 (2018). Based on the available evidence of record, the Board concludes that service connection is not warranted for the claimed bilateral hearing loss. To the extent the Veteran asserts that he does in fact have bilateral hearing loss, the objective clinical testing outweighs the lay opinion, as audiometric testing is required to determine whether there is hearing loss for VA purposes compared to a lay assertion on the matter. Jandreau v. Nicholson, 492 F 3d 1372, 1377 (Fed Cir 2007). The Board notes that it does not doubt the credibility of the Veteran’s reports of being exposed to noise during service as he can attest to factual matters of which he had first-hand knowledge; however, the VA examiner’s opinion is of more probative value than the Veteran’s lay statements. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Therefore, based on the VA examination results and evidence of record, service connection for bilateral hearing loss must be denied because there is no current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that in the absence of proof of a present disability there can be no valid claim). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is no applicable. Therefore, service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel