Citation Nr: 21002193 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-31 988 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not have its onset in service, was not manifest to a compensable degree within a year of his separation, and is not otherwise related to his active service. 2. The Veteran’s tinnitus did not have its onset in service, was not manifest within a year of his separation, and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 ,3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1958 to September 1968, to include service in the Republic of Vietnam. The Veteran was awarded, among other decorations, the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his substantive appeal, the Veteran requested the opportunity to testify at a video conference hearing. The Veteran’s representative withdrew that request in February 2019. In August 2019, the Board remanded the claims for further development. Specifically, the Board directed that the RO obtain additional private and VA treatment records, and that the Veteran be scheduled for a VA examination. Additional VA treatment records were obtained, most recently in September 2020. The Veteran was sent a letter that same month asking him to submit records of his private treatment, or to submit authorizations for VA to obtain them on his behalf; the Veteran did not respond to this letter. As detailed more fully below, the RO attempted to schedule the Veteran for a VA examination numerous times; the Veteran did not attend his scheduled examinations, nor has he presented good cause as to why they should be rescheduled. Thus, because the RO successfully obtained the Veteran’s VA treatment records and attempted (consistent with the remand directives) to obtain private treatment records and to schedule the Veteran for a VA examination, the Board finds substantial compliance with its remand instructions. Service Connection 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss and tinnitus (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as ‘chronic’ in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown 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 cause. 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. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for bilateral hearing loss and tinnitus. The Veteran attributed his bilateral hearing loss and tinnitus to combat service in the Republic of Vietnam. He claimed that he served as an infantryman while he was in the Republic of Vietnam and was exposed to a high level of noise. See September 2015 VA 21-526EZ, Fully Developed Claim (Compensation) and May 2016 NOD. The Veteran’s military personnel records show that his military occupational specialties included being a cook and rifleman. It was noted that the Veteran participated against hostile forces in the Dong Ha Area, Republic of Vietnam from August 1967 to September 1968. It was noted that the Veteran had personal exposure to the hazards of combat. The Board notes that veterans are competent to attest to noise exposure during service, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and the Veteran’s statements in this case are consistent with the places, types and circumstances of his military occupation. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Therefore, the Board concedes that the Veteran was exposed to loud noise during his active service. Impaired hearing is a disability for VA 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 three 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. The Veteran’s service treatment records are silent for any signs, symptoms, treatment for, or complaints of bilateral hearing loss for VA purposes or tinnitus. The Veteran’s September 1968 Report of Medical Examination for separation revealed that the Veteran did not have any problems with his hearing or ringing in his ears. VA treatment records show that in March 2012, the Veteran denied having hearing loss, discharge, pain, and tinnitus. In an August 2013 VA treatment record, it was noted that the Veteran had hearing difficulty. In September 2014, the Veteran had a VA audiology consultation. He was negative for bilateral tinnitus. Audiometric results revealed asymmetrical mixed hearing loss (right worse than left) for pure tone thresholds. The Veteran was referred by a VA medical center (VAMC) to a private medical care provider for his hearing loss. In an October 2014 private treatment record, it was noted that the Veteran had about 10 years of progressive hearing loss, but the Veteran denied tinnitus. The Veteran also underwent a private audiological evaluation in October 2014, the results of which were provided in graph form. The Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). As interpreted from graphical form, the Veteran demonstrated the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 Average RIGHT 30 50 45 60 80 58.75 LEFT 15 35 50 50 50 46.25 Speech recognition testing using the NU-6 test (Maryland CNC test was not used) revealed 72 percent in the left ear and 92 percent in the right ear. According to this evaluation and other evidence of record, the Board finds that the Veteran has bilateral hearing loss for VA purposes. In November 2015, a VA medical opinion was obtained for the Veteran. The VA examiner did not conduct an audiological evaluation of the Veteran or examine the Veteran. The examiner opined that it was less likely than not that the Veteran’s claimed bilateral hearing loss and tinnitus were incurred in or caused by his military service. The opinion was based on a review of the Veteran’s claims file, review of service and medical history, clinical expertise, and review of related literature. The Veteran’s enlistment hearing examination showed normal hearing in both ears through “whispered voice test.” The “whispered voice test” was not considered by VBA to have probative value. However, the separation hearing exam in 1968 showed normal hearing in both ears from 500 to 6000 Hz. Thus, there was no evidence of acoustic trauma or hearing loss in either ear. Additionally, the November 2015 VA examiner noted that tinnitus was not report on the Veteran’s service treatment records and could not be claimed secondary to acoustic trauma as there was no hearing loss at separation. In addition, according to the Nosie Manual (Berger et al., 2000, p. 125), “only seldom [did] noise cause a permanent tinnitus without causing hearing loss.” Thus, there was no nexus of the Veteran’s reported hearing loss and tinnitus to his military service. In August 2019, the Board remanded the issues for service connection for bilateral hearing loss and tinnitus because the Veteran had not been afforded a VA examination for his tinnitus and bilateral hearing loss. The Board did not explicitly find that the earlier VA opinion was inadequate; instead, the Board noted the changed landscape since the earlier opinion was offered, including additional medical evidence and statements from the Veteran. The Board thus found that additional development, to include obtaining records and a new VA examination and opinion were required. On remand, the RO scheduled the Veteran for a VA examination multiple times, but the Veteran did attend any VA examination. The RO also attempted to contact the Veteran through telephone, but the Veteran did not respond. See January 2020 VA 21-0820 Report of General Information. In December 2019, the RO mailed to the Veteran a letter informing the Veteran that a VA examination had been requested through a private medical facility to determine his current level of disability. He was also informed that if he failed to report to the examination without good cause, the claim would be rated based on the evidence of record, or even denied. See December 2019 Subsequent Development Letter. When necessary or requested, the Veteran must cooperate with VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street.”). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause,” fails to report for such examination, action shall be determined under 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and the death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be based on the evidence of record. 38 C.F.R. § 3.655(b). In a December 2020 Appellate Brief, the Veteran argued that the Board did not contact VHA to verify whether the phone number on file at VHA was the same as VBA. The representative stated that it was common belief by veterans that when they updated their contact information with VHA, that the VHA and VBA systems were inter-connected, and it was also updated with VBA. The representative asserted that VA failed to demonstrate lack of good cause and further, there had been insufficient notice to the Veteran of the result of his failure to report for examination under 38 C.F.R. § 3.665(b). The representative argued that he should be rescheduled for the examination(s) and notified of the regulations which would apply should he again fail to report. These arguments are unavailing. First, VA mailed the Veteran notification of his scheduled VA examinations multiple times and informed him of the consequences of failing to attend his examinations. See December 2019 Subsequent Development Letter and January 2020 VA 21-0820 Report of General Information. There is no indication in the record that the mailed letters were returned undelivered or that the letters were not sent to the correct address on file. As for the phone number on file, VA is not obligated contact VHA to verify whether the phone number on file at VHA was the same as VBA. VA already sent the Veteran letters in the mail informing him his scheduled examinations. VA fulfilled its duty to assist by doing its due diligence to contact the Veteran. Any more efforts by VA would be exhaustive. Further, the applicable regulation requires the claimant to furnish good cause for why an examination should be rescheduled, not VA. The Veteran did not provide good cause for his failure to report to his examination. Therefore, the claim will be decided by the evidence of record. 38 C.F.R. § 3.655. Based on the foregoing evidence, it is not shown that the Veteran’s claimed bilateral hearing loss and tinnitus had their onset in service or that they manifested to a compensable degree within one year after service; it is also not shown that the Veteran has had a continuity of symptoms of hearing loss or tinnitus since service. In this regard, the Board acknowledges the Veteran’s lay statements that the Veteran had hearing problems or tinnitus since service. The Veteran is competent to give evidence about observable symptoms. Layno v Brown, 6 Vet. App. 465 (1994). However, findings of competency and credibility are two distinct matters, and after careful review of the evidence, the Board finds that the statements that the Veteran has had continuous hearing or tinnitus problems since service to be not credible. Significantly, the Veteran’s service treatment records are silent for any signs, symptoms, diagnosis of, and treatment for tinnitus or hearing loss. The Board acknowledges the fact that the Veteran asserted that at the time of his discharge from the military, he did not receive any hearing evaluation. He asserted that upon discharge, the hearing evaluation was simply filled in to facilitate the discharge procedures. See May 2016 NOD. However, a March 2012 VA treatment record shows that he denied having bilateral hearing loss or tinnitus. In a September 2014 VA audiology consultation, the Veteran was diagnosed with hearing loss, but was considered negative for tinnitus. In an October 2014 private treatment record, it was noted that the Veteran had about 10 years of progressive hearing loss, but the Veteran denied tinnitus. This medical evidence shows that the Veteran’s symptoms of hearing loss and tinnitus did not have their onset until many years after service. Therefore, service connection for tinnitus and bilateral hearing loss based on a theory of presumptive service connection or continuity of symptomatology is not warranted. As for the nexus element of service connection, there is only one medical opinion of record, which is not favorable to the Veteran’s claims. As discussed above, the Veteran’s claim will be based on the evidence of record because he failed to attend his VA examination without good cause. The October 2015 medical opinion provided a negative conclusion. As there are no other positive opinions of record, this opinion weighs against the Veteran’s claims. To the extent that the Veteran’s representative has previously contended that the opinion is not adequate, whether the Board agrees or not is ultimately immaterial. If the opinion is adequate, then it is probative evidence that weighs against the Veteran’s claim. If it is inadequate, then there still remains no competent evidence in support of the Veteran’s contention that his disabilities are related to his active service. Further, if the opinion is inadequate, the Board has already fulfilled its duties to attempt to obtain an adequate opinion, but the Veteran did not attend his scheduled examinations, and the issue must be decided on the evidence of record. Quite simply, regardless of the adequacy of the earlier opinion, the Board need not rely on it to decide the Veteran’s claim. As for the statements from the Veteran relating his tinnitus and bilateral hearing loss to his military service, while he may be competent to testify as to the experiences he encountered in service as well as the symptoms he now experiences (such as difficulty in hearing and ringing in ears) it is beyond his competence as a layperson to opine regarding medical etiology. The Veteran lacks the training to opine whether his claimed hearing loss and tinnitus conditions may (in the absence of evidence of continuity, as here) be related to remote incidences in service; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court). In light of the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran’s hearing loss and tinnitus and his active service. Accordingly, the appeal seeking service connection for bilateral hearing loss and service connection for tinnitus must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.