Citation Nr: 21042061 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 19-15 534 DATE: July 11, 2021 ORDER Service connection for nerve damage in both ears, claimed as Meniere's syndrome, is denied. FINDING OF FACT The Veteran failed, without good cause, to appear for his scheduled VA examination related to his claim of entitlement to service connection for nerve damage to both ears, also claimed as Meniere's syndrome; moreover, the probative evidence of record does not document complaints, treatment or a diagnosis of nerve damage, claimed as Meniere's syndrome, of the ears. CONCLUSION OF LAW The criteria for nerve damage in both ears, claimed as Meniere's syndrome, have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1952 to October 1956. This matter comes before the Board of Veterans' Appeals from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2020 Board decision remanded this matter to provide the Veteran a VA examination and develop any outstanding treatment and disability benefit records. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) 1. Nerve damage in both ears, also claimed as Meniere's The Veteran contends that his bilateral nerve damage of the ears, also claimed as Meniere's, is related to service. Initially, the Board notes that Meniere's disease is a disorder of the inner ear, which can cause disabling vertigo (a false sensation of moving or spinning), fluctuating hearing loss in the lower frequencies, and tinnitus. See Meniere Disease, Merck Manual, found at https://www.merckmanuals.com/home/ear,-nose,-and-throat-disorders/inner-ear-disorders/meniere-disease. Generally, to establish service connection, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When entitlement or continued 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, or reexamination, action shall be taken in accordance with the type of claim. 38 C.F.R. § 3.655(a). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when an examination was 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). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence is against the claim, it must be denied. Id. Regarding the first Shedden element, a current diagnosis, the record does not indicate that the Veteran was treated for Meniere's syndrome or a vestibular disturbance. The Veteran testified that he has experienced symptoms since service, which he described as a rushing sensation in his ears, vertigo-like symptoms, and popping in his ears, similar to being on an airplane. He added that the has been prescribed ear medicine and been told by doctors that he has damage to his ears. See July 2020 Hearing Transcript, pg. 9. Although competent, his statements alone are not sufficient to establish a diagnosis. However, the Veteran's statements and in-service noise exposure were sufficient to trigger the duty to assist to provide the Veteran with a VA examination. A July 2020 Board decision remanded the matter to provide an examination, as further discussed below. Regarding the second Shedden element, an inservice incurrence, the Veteran was exposed to hazardous noise and the Board finds that the second element is met. Regarding the third Shedden element, a nexus between the claimed current disorder and service, the Board remanded the matter for a VA examination. In March 2021, the Veteran was notified of his VA examination. See Examination Notice, dated March 27, 2021. However, the Veteran did not report for the examination. See April 22, 2021 Report of Non-appearance. VA contacted the Veteran and the Veteran stated that he does not wish to attend any more audiology examination appointments. See QTC Addendum, dated May 10, 2021. The RO followed up with the Veteran; the Veteran stated that he did not wish to attend another examination. See VA Form 21-0820 Report of General Information. The May 2021 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examination, and provided notice of the provisions of 38 C.F.R. § 3.655. Although a copy of the letter notifying the Veteran of the date of the examination was not uploaded to the claim file concurrently with the date of mailing, this alone does not equate to good cause for failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Critically, the Veteran has not disputed that he failed to report without good cause for the needed examination or asserted that he did not receive notice. To the contrary, the record reflects he was contacted about the examinations and that he declined to report for any further examinations. See VA Form 21-0820 Report of General Information. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655 apply and claims of service connection for bilateral ear nerve damage, Meniere's, are reviewed upon the evidence of record. The Board has reviewed the evidence of record, which includes treatment records, statements, and examinations, and finds no diagnosis of nerve damage, Meniere's, or ear vestibular disturbance. The Board acknowledges that although the Veteran believes he has Meniere's, he is not competent to render a diagnosis. The issue is medically complex and goes beyond a simple and immediately observable cause and effects. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board gives more probative weight to the competent medical evidence. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral ear nerve damage, Meniere's disorder. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert, 1 Vet. App. at 49. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.