Citation Nr: 21022763 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-20 662 DATE: April 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have a current disability of bilateral hearing loss. 2. The Veteran’s tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 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 from July 1984 to September 1991. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of the Department of Veterans’ Affairs (VA) regional office (RO). In March 2019, the issues were remanded by the Board. Service Connection Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Bilateral Hearing Loss 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was provided with VA audio examinations in September 2014, March 2016, and November 2019. Pursuant to the March 2019 Board remand directive, the November 2019 examiner was different that the previous examiner. At all three examinations, the examiners noted the test results for the audio exam were inconsistent and thus considered invalid and unreliable. The examiners noted they explained the importance of participating in the exam and even encouraged cooperation. The Veteran expressed understanding of the procedures “and there were no behaviors exhibited that would lead one to think that he could not complete testing.” See March 2016 examination report. However, the Veteran still showed poor interest reliability. After the first two examinations with poor interest reliability and a lack of compliance with the testing, the Board provided a third chance. The March 2019 remand directed: “Advise the Veteran that his failure to report for and cooperate with a VA audiological examination in conjunction with his service connection claims will result in the summary denial of the claims without review on the merits.” The October 2019 subsequent development letter stated: “When a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied.” It went on to provide examples of good cause. After the third examination in November 2019 where the Veteran again did not cooperate, the representative submitted an appellate brief. In this September 2020 brief, the Veteran argued that while he was sent a subsequent development letter instructing him to attend his examination, the letter did not explain the importance of cooperation during the examination. In essence, he argues that there has not been substantial compliance with the prior remand directive. The Board finds that even if there was not strict compliance with the directive to specifically notify the Veteran of the consequences of not cooperating during the examination, there was substantial compliance. First, the Veteran had actual notice of the consequences of not cooperating. The text of the March 2019 Board remand itself, quoted above, provided notice of these consequences to the Veteran. Second, as noted above, the examiners documented that they reinstructed and encouraged the Veteran to cooperate during the exam and that he understood the process. Third, a reasonable person would be expected to understand after reading the March 2019 remand and attending three examinations for this purpose, that cooperation in the examination process is important. “The duty to assist is not always 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). To the extent possible, the VA has attempted to assist the appellant. Due to the consistent nature of the examination results from two distinct examiners on three separate occasions, the Board is not persuaded another examination would produce better results. Accordingly, no further attempts to assist the appellant are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The Board finds that the agency of original jurisdiction substantially complied with the March 2019 remand orders and no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The record is negative for audiometric findings which show the Veteran has hearing loss meeting the criteria of 38 C.F.R. § 3.385. The Veteran himself is not competent to diagnosis hearing loss for VA purposes as he has not demonstrated the medical training, expertise, or experience to conduct and interpret the specialized audiological testing required. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (holding that in the absence of proof of a present disability, there can be no valid claim). Given the finding of no current disability, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the claim must be denied. 38 C.F.R. § 3.385. Tinnitus The Veteran contends his tinnitus stems from his time in service where he served as a radio operator. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a one year following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Organic diseases of the nervous system, including tinnitus, are considered qualifying chronic diseases under 38 C.F.R. § 3.309(a) which may allow a presumptive service connection, but the other elements of service connection must still be shown for the presumption to attach. 38 C.F.R. § 3.307. Tinnitus may be considered an organic disease of the nervous system under § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2016). For the showing of a 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 chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b), 3.309; Walker, 708 F.3d 1331. In an October 2019 statement, the Veteran described his condition of tinnitus. He stated he has “a constant ringing in [his] ears that sounds like a loud, sharp humming and buzzing noise.” He further explained these symptoms began when he worked as a Navy Radioman on both ships and shore duty. He would work in small rooms and spaces monitoring many loud noise producing signals and devices. He had to intently listen to loud broadcasts out of multiple speakers, and monitor broadcasts and transmissions that produced clicking, buzzing, and ringing sounds. He also reported since leaving service he has not had a job associated with loud noises. The Board finds the reports of noise exposure consistent with the time, place, and circumstances of the Veteran’s duties in service and finds the Veteran was exposed to hazardous levels of noise during service. The Veteran is competent to describe observable symptoms such as ringing in the ears as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran is competent to describe the onset of his tinnitus as starting during his service as a Radioman. There are no medical opinions regarding tinnitus, as no audiological examinations were successfully completed. After review of the entire record, the Board finds the Veteran to be competent and credible in the evidence provided concerning his tinnitus symptoms and timing thereof. As the Board has found the Veteran was exposed to hazardous levels of noise during service, and the only competent and credible evidence shows continuity of symptomology related to his tinnitus after service, service connection for tinnitus is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.