Citation Nr: 20023080 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 19-20 166 DATE: April 3, 2020 ORDER Entitlement to service connection for vertigo is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for a left wrist disorder is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial evaluation in excess of 10 percent for thoracic spine strain is denied. Entitlement to an initial evaluation in excess of 10 percent for right wrist tenosynovitis is denied. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The Veteran is not shown to have (or at any time during the pendency of his claim to have had) vertigo, sleep apnea, erectile dysfunction or a left wrist disorder. 2. The Veteran is not shown to have (or at any time during the pendency of his claim to have had) a bilateral hearing loss disability, as defined by VA regulation. 3. The Veteran failed (without providing cause) to report for VA examinations scheduled to assess his thoracic spine strain and right wrist tenosynovitis. 4. Throughout the appeal period, the Veteran’s bilateral tinnitus has been assigned a 10 percent rating, the maximum authorized under Diagnostic Code (Code) 6260. CONCLUSIONS OF LAW 1. Service connection for vertigo, sleep apnea, erectile dysfunction and a left wrist disorder is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655, 3.385. 3. The Veteran’s claims seeking increased ratings for thoracic spine strain and right wrist tenosynovitis must be denied because he failed (without good cause) to appear for examinations scheduled in conjunction with his claims for such benefits. 38 U.S.C. §§ 1155; 38 C.F.R. § 3.655(b). 4. There is no legal basis for the assignment of an initial rating in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to December 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2020, the motion filed by the Veteran’s former attorney, J. Michael Woods, to withdraw as the Veteran’s attorney was granted. The Veteran is currently representing himself. Pursuant to his claims for service connection for bilateral hearing loss and increased ratings for thoracic spine strain and right wrist tenosynovitis, the RO had scheduled the Veteran to undergo VA examinations in July 2018. Unfortunately, the Veteran failed to report for these examinations and he has not provided good cause, or any communication, explaining his absence and/or failure to cooperate. There is no evidence that the notice of the scheduled examination was not received by the Veteran (and it is not claimed otherwise). None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of 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 regularity to RO actions). In this regard, the Board emphasizes that the duty to assist a claimant in developing the facts and evidence pertinent to a claim is not 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, 193 (1991). The Board further notes that, where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. When the examination is 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). The claims of service connection for hearing loss and increased ratings for thoracic spine strain and right wrist tenosynovitis adjudicated below will be addressed accordingly. The Veteran was not afforded VA examinations in connection with his vertigo, sleep apnea, erectile dysfunction and left wrist disorder claims. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no competent credible evidence of record which indicates that the Veteran has been diagnosed with or had persistent or recurrent symptoms of vertigo, sleep apnea, erectile dysfunction or a left wrist disorder related to service, an examination and/or opinion as to these matters is not required. Neither the Veteran nor his prior representative have raised any issues with the duty to notify or duty to assist. See 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.”). The Veteran has not identified any pertinent evidence that remains outstanding. Accordingly, the Board finds that it does not have a further duty to assist the Veteran in substantiating his claims and will proceed with adjudication of his claims. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, the evidence 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Vertigo, Sleep Apnea, Erectile Dysfunction and Left Wrist Regarding the first element of service connection (i.e., a current diagnosis), the medical evidence of record does not show the Veteran to have (or at any time during the pendency of his claim to have had) vertigo, sleep apnea, erectile dysfunction or a left wrist disorder. The post-service (and service) treatment records are silent as to complaints or findings referable to vertigo, erectile dysfunction or a left wrist disorder and, although he has been treated for complaints of impaired sleep (usually in connection with mental health treatment), the record does not show (or suggest) the Veteran has sleep apnea. Regarding the left wrist, the Veteran’s June 2018 claim is for a “left wrist condition” and he does not allege symptoms of pain. Nevertheless, it is noted that pain, by itself, is not a disability for which service connection may be granted by VA. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). VA recognizes pain as a disability where there is also functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the record does not reflect that the Veteran has functional impairment of the left wrist. As such, a current disability of vertigo, sleep apnea, erectile dysfunction or a left wrist disorder is not established. Lacking a current disability, service connection cannot be established, and the claims must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (a current disability is the cornerstone of a service connection claim). Accordingly, the preponderance of the evidence is against the Veteran’s claims of service connection for vertigo, sleep apnea, erectile dysfunction and a left wrist disorder; therefore, the benefit of the doubt rule does not apply and the appeal as to these matters must be denied. Hearing Loss The Veteran contends he is entitled to service connection for bilateral hearing loss. As explained below, the Board finds that service connection for bilateral hearing loss is not warranted on a direct or presumptive basis. Certain chronic diseases, including hearing (as an organic disease of the nervous system), may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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. In this case, service connection is not warranted for hearing loss because the evidence demonstrates no disability under 38 C.F.R. § 3.385. The Veteran underwent VA audiological testing in October 2012 (in connection with his earlier claim for service connection for tinnitus). The report does not note an auditory threshold of 40 decibels in a frequency between 500 and 4000 Hz, does not note auditory thresholds of at least 26 decibels in at least three of the frequencies between 500 and 4000 Hz, and does not note speech recognition less than 94 percent in either ear. Rather, in the relevant frequencies, thresholds of 20 decibels and lower were noted, and the Veteran was found to have 100 percent speech recognition in each ear. Although the examiner attributed the Veteran’s hearing loss to his in-service occupation (and exposure to hazardous noise), the diagnosis was sensorineural hearing loss in each ear in the frequency range of 6000 Hz or higher. There is no post service medical evidence of record showing findings that would satisfy the criteria noted under 38 C.F.R. § 3.385. The Board does not ignore that the Veteran was exposed to acoustic trauma during his military service (and service connection for tinnitus has been granted based on such noise exposure). In the absence of a disability, however, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the Veteran’s claim of service connection for hearing loss; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Thoracic Spine and Right Wrist The present appeal arises from the Veteran’s June 2018 claim for increased ratings for his service connected thoracic spine strain and right wrist tenosynovitis. As noted above, the RO scheduled the Veteran to undergo updated VA examinations in July 2018 to help determine the extent and severity of his thoracic spine and right wrist disorders. The Veteran did not report for these examinations and he has not provided good cause, or any communication, explaining his absence and/or failure to cooperate. The record does not show (and it is not claimed) that the letter notifying him of the scheduled VA examination was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994). The Board finds no evidence of any VA error in notifying or assisting the Veteran. He has not requested that these examinations be rescheduled. As noted above, while VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). As such, remand to reschedule the examinations is not warranted. The Board further notes that, where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. When the examination is 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). The regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160. This is nondiscretionary, as evidenced by use of the word “shall” in this regulation. Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011) reversed on other grounds, Kyhn v. Shinseki, 716 F.3d 572, 574-76 (Fed. Cir. 2013). In the present appeal, the Veteran’s claim is not an original compensation claim. His VA Form 21-526c, Pre-Discharge Compensation Claim, was received in September 2012 and a May 2013 rating decision granted service connection for thoracic spine and right wrist disabilities, effective from January 1, 2013, the day following his separation from service. The current appeal arose from a June 2018 claim for increased ratings. As such, these claims fall within the parameter of claims for increase. The claims are accordingly denied pursuant to 38 C.F.R. § 3.655(b). Entitlement to increased ratings for thoracic spine and right wrist disabilities cannot be established without current VA examinations. The Veteran has failed to provide any reasons for his failure to report for the scheduled VA examinations. Under the circumstances, his claims must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Tinnitus Tinnitus is evaluated under 38 C.F.R. § 4.87, Code 6260, which provides a maximum 10 percent rating for recurrent tinnitus. Note (2) following Code 6260 further explains that the Board must assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears or in the head. Throughout the appeal period, the Veteran has been assigned the maximum 10 percent rating allowed for tinnitus. As tinnitus has its own code, Code 6260, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court held that the pre-1999 and pre-June 13, 2003 versions of Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Code 6260, which limits a Veteran to a single evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Hughes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.