Citation Nr: 21025492 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-35 308 DATE: April 28, 2021 ORDER Entitlement to service connection for an ear disability, to include bilateral hearing loss, otalgia, and symptoms of ear popping, dizziness, and balance problems, is denied. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran’s bilateral hearing loss is related to the Veteran’s service or manifested to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for an ear disability, to include bilateral hearing loss, otalgia, and symptoms of ear popping, dizziness, and balance problems are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1966 to July 1969, which included service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board remanded this case in March 2019 for more development and a VA examination. The Board requested that the RO contact the Veteran to get the necessary authorizations to obtain all records regarding the Veteran’s hearing loss and other ear conditions. Additionally, the Board requested outstanding VAMC records. The Veteran’s record has been updated with outstanding VAMC records. Additionally, on October 15, 2019, the RO sent a letter requesting that the Veteran complete and return both a VA Form 21-4142a General Release for Medical Provider Information to the Department of Veterans Affairs and a VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs. The Veteran did not return either of the authorizations. In addition, the Veteran did not appear for his December 2019 VA examination. There is no evidence that the Veteran contacted the VA to reschedule his examination and he has not shown good cause for failing to appear for the VA examination. The Board notes that it is the Veteran's obligation to actively participate in the retrieving of any information pertinent to his claim, to include attending scheduled VA examinations and identifying relevant records. He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so subjects him to the risk of an adverse adjudication based on an incomplete or underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). "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." Id. at 195. Service Connection Service connection may be granted for a disability from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all the evidence including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Hearing loss and tinnitus are among the chronic disabilities for which a presumption of service connection is warranted if shown to a compensable degree withing a year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Entitlement to Service Connection for an Ear Disability The Veteran is seeking service connection for an ear disability. The Veteran contends he was exposed to gunfire, artillery rounds, and grenades during service. He also noted that he was a heavy equipment operator and truck driver during his active service. The question for the Board is whether the Veteran has an ear disability that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) 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, 4000 Hz is 40 dB or greater: when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157. The Veteran’s enlistment examination from April 1966 is silent for any hearing or ear issues. In the May 1969 separation examination, no hearing or ear issues were noted or reported. Both examinations contained audiology information. No significant threshold shifts were noted. In February 2000, the Veteran had a VAMC audiology appointment. The Veteran was found to have normal hearing in the right ear with a severe sensorineural hearing loss at 8000 Hz. The Veteran’s left ear left ear indicated a mild/high frequency, sensorineural hearing loss in the left ear. The Veteran’s speech recognition was excellent, bilaterally. In a June 2000 note, hearing was not selected as a barrier to learning. The Veteran was afforded a VA hearing examination in March 2013.The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 45 50 LEFT 35 40 50 65 70 The average pure tone threshold average for the Veteran’s right ear was 40 for the right ear and 56 in his left ear. The Veteran’s Maryland CNC speech discrimination score was 88 percent in his right ear and 72 percent in his left ear. The Veteran has hearing loss. No other ear disabilities, other than tinnitus, were noted in the examination. The examiner did not find that the Veteran’s hearing loss was at least as likely as not caused by or a result of service. In support thereof, the examiner noted that the Veteran’s induction and separation examinations were within normal limits and that there was no significant threshold shift. The examiner found that the Veteran’s tinnitus was at least as likely as not connected to service based upon his exposure to noise during military service and the onset being at least 25 years prior to the exam. It was the examiner’s opinion that the Veteran’s tinnitus was less likely than not a symptom associated with his hearing loss as tinnitus was noted prior to hearing loss. The Veteran subsequently underwent a private hearing exam through Central Michigan University in August 2014. Hearing loss was noted on the examination. The examiner opined that it could not be established from the results of this appointment that there was a relationship between the Veteran’s past service in the Vietnam War and acquired hearing loss, therefore further testing was recommended. The examiner also indicated that further testing was required to rule out retrocochlear pathology for the assymetry on his pure tone hearing tests due to his reported tinnitus. In addition, the examiner indicated that a referral to an otolaryngologist should be considered due to the Veteran’s reports of otalgia and ear popping and recommended a vestibular evaluation due to the Veteran’s reports of dizziness and balance problems. The record does not show that the Veteran was afforded an evaluation to rule out retrocochlear pathology as a cause of his hearing loss or afforded the other evaluations for his other possible ear conditions as recommended by the Central Michigan University August 2014 examiner. The Veteran was supposed to be examined for these conditions as part of the March 2019 Board remand. However, as detailed above, the Veteran failed to report to the examination. The Board notes the Veteran’s lay testimony in the record that his ear disability is due to his military service and his exposure to artillery rounds, rapid gun fire, grenades, and tanks while in Vietnam. While he is competent to report having experienced symptoms since service, he does not have the training or credentials to provide a competent opinion as to a diagnosis or etiology in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the medical evidence of record persuasive in this case. The multiple hearing exams, both private and VA, show the lack of nexus between the Veteran’s hearing loss and his active service. The Veteran’s representative has also argued that the Veteran was exposed to high noises levels due to loud equipment, tools, machinery, motor vehicles, and aviation operations. However, the Veteran’s claims file lacks any positive medical nexus opinion. The Board finds that the preponderance of the evidence is against the Veteran's claim. There are no documented complaints or records of treatment for hearing loss or ear condition in the Veteran's service treatment records. The post-service treatment records do not reflect any treatment for an ear condition until several decades after service and contain no medical opinions supporting his contentions. Moreover, the October 2013 VA examiner and August 2014 private examiner found no nexus between the Veteran’s current hearing loss and/or ear conditions and his active service. Lastly, the medical evidence does not show he was diagnosed with hearing loss and/or an ear condition by July 1970, one year from separation from active duty, and so service connection is also not warranted under the presumptive provisions of 38 C.F.R. § 3.303(b). (Continued on the next page)   In light of these findings, the Board concludes that service connection for an ear disability to include bilateral hearing loss, otalgia, and symptoms of ear popping, dizziness, and balance problems, is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. C. M. Collins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.