Citation Nr: 21001165 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-42 532A DATE: January 7, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for genital herpes is denied. FINDINGS OF FACT 1. It is not shown that the Veteran has, or during the pendency of the claim has had, a hearing loss disability in either ear for VA benefits purposes. 2. The preponderance of the evidence is against finding that tinnitus began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that genital herpes began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for genital herpes are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1993 to December 1993 with additional periods of service in the National Guard and Reserve until his discharge from the U.S. Navy Reserve in July 2013. The Board thanks the Veteran for his service. These matters come before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). This case was previously before the Board in September 2018, when the Board remanded for additional development. The September 2018 Board remand also included the issue of entitlement to service connection for a low back disability. In a June 2020 rating decision, the RO granted service connection for lumbosacral strain with intervertebral disc disease and related bilateral lower extremity radiculopathy. As this represents a complete grant of the Veteran’s claim for service connection for a low back disability, the issue is resolved and no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The September 2018 Board remand directed the RO to “[s]end the Veteran a letter asking him for clarification as to the date of onset of his claimed disabilities. Specifically ask him to indicate when he was first exposed to loud noise in service, when he hurt his back during service, and when he contracted genital herpes. With this information, determine his duty status, if applicable, on those dates.” In August 2019, the RO sent a letter to the Veteran asking him to provide clarification for the onset of the claimed disabilities. Specifically, indicate when he was first exposed to loud noise in service and when he contracted genital herpes. The Veteran did not provide the requested information. The RO substantially complied with the remand instructions of the Board’s September 2018 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1131. When a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty (on Reserve ACDUTRA/INACDUTRA or during federalized National Guard service). Otherwise, the period would not qualify as "active military, naval, or air service" and the claimant would not achieve "veteran status" for purposes of that claim. See 38 U.S.C. § 101 (2)-(24). Presumptive periods for service connection, the presumption of soundness, and the presumption of aggravation generally do not apply to ACDUTRA or INACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or by an injury incurred or aggravated in the line of duty during INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service under 38 U.S.C. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c)(d). Allen and Key v. Nicholson, 21 Vet. App. 54, 57 (2007). 1. Entitlement to service connection for hearing loss and tinnitus The Veteran contends he has ringing in his ears due to ear protection coming off sometimes, and he cannot hear out of his left ear. The Veteran reported ringing in his ear due to his hearing protection was knocked off when shooting at the range. See March 2014 written statement. However, it remains unclear, as noted in the 2018 remand when he believes he was exposed to such noise and his duty status at the time. An October 2010 treatment note was negative for hearing loss and tinnitus. Medical records show the Veteran has worked as a police officer. Military personnel records show the Veteran’s MOS was rifleman during his service in the Army National Guard and he worked in Security while in the Navy Reserves. Treatment records include an April 2012 audiometry examination that showed asymmetric hearing loss and the Veteran was found to no longer be fit to work in noise. The Veteran was stationed in Naples, Italy from March 2012 to April 2012 for annual training as part of the Navy Reserves.   Audiometry revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 80 90 75 90 95 LEFT -5 0 5 20 15 However, the October 2019 VA examiner performed audiometric testing and found the Veteran had normal hearing in both ears. The VA examiner opined the Veteran’s right and left ear hearing loss is not at least as likely not caused by or a result of an event in military service because the Veteran has normal hearing. The Veteran reported onset of tinnitus seven or eight years prior after an incident on a firing range where a shooter fired a gun next to his left ear after the signal was given to stop firing. HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 20 LEFT 15 20 25 20 20 The preponderance of the evidence is against the claims of service connection for hearing loss and tinnitus. The Veteran does not have a present hearing loss disability for VA benefits purposes. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is 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. The authorized VA audiology examination in 2019 did not demonstrate that any of the 38 C.F.R. § 3.385 criteria were met in either ear, nor is there any other evidence to reflect that any of the criteria were met for hearing loss disability at any time during the appeal. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that he currently has (or during the pendency of the claim/appeal has had) the disability for which service connection is sought (a hearing loss disability in either ear, or both). In the absence of proof of current disability there is no valid claim for service connection. See McClain v. Nicholson, 21 Vet. App. at 321 (2007). With respect to the tinnitus claim, the preponderance of the evidence is against a finding that tinnitus began in service, manifested within the first year following a period of active duty or is otherwise related to service. While the 2019 VA examiner noted the Veteran reported recurrent tinnitus such that the current disability criteria are met, the examiner found that the tinnitus was less likely than not related to military noise exposure. The examination report indicated that tinnitus began “7-8 years ago”, in the 2011-2012 timeframe, when the Veteran’s only service was ACDUTRA or INACDUTRA, so the presumptive periods do not apply. As noted above, the Veteran did not respond to the RO’s requests for additional information about date of onset. 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). 2. Entitlement to service connection for genital herpes The Veteran contends he was infected with genital herpes by a female sailor while in the Navy reserves. He further states that this occurred while he was on an unspecified period of annual training. The treatment record shows an August 2009 diagnosis of unspecified genital herpes during his Navy Reserve period, and in March 2010 he presented with a complaint of severe flare up. The preponderance of the evidence is against the claim of service connection for herpes. The date of onset of the claimed disability of herpes has not been established so incurrence or aggravation of a disease or injury in service has not been shown. As noted above, the Veteran did not respond to the RO’s requests for additional information about date of onset. Therefore, the RO was not able to determine whether onset occurred during a period of ACDUTRA or INACDUTRA. 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). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, Associate Counsel 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.