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How To Lose Your Claim 001

How To Lose Your Claim 001

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Published by Jim
What not to do.
What not to do.

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Published by: Jim on Nov 19, 2011
Copyright:Attribution Non-commercial


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 Designated for electronic publication only
. 10-3111
.Before FARLEY,
 Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.
: The appellant appeals the August 26, 2010, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for bilateral hearing loss.Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcomeis not reasonably debatable."
 Frankel v. Derwinski
, 1 Vet.App. 23, 25-26 (1990). This appeal istimely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasonsthat follow, the Court will affirm the August 2010 Board decision.The Board also remanded the appellant's claim for entitlement to a service connection for dizziness. That claim is not before the Court because it was not the subject of a final Board decision.
See Breeden v. Principi,
17 Vet.App. 478 (2004).
The appellant served on active duty in the U.S. Army from March 1971 to February 1974.Record (R.) at 935, 1104. In March 1971, the appellant's induction examination reported left ear hearing loss and his ears were evaluated as abnormal. R. at 1170. During the appellant's January1974 separation examination, however, the appellant's ears were evaluated as normal. R. at 1168-69.Audiometric testing during a November 1974 examination revealed normal hearing in both ears. R.
at 1118, 1134. In December 1980, the appellant submitted a private examiner's audiological report.R. at 1018-29. Audiometric testing during the private examination appeared to reveal hearing lossin both ears, with the left ear being worse than the right ear. R. at 1022, 1028;
 see also
R. at 383,681.In January 2001, the appellant underwent a VA audiology consultation. R. at 379-81. Hereported gradual hearing loss and an explosion in 1971, which he indicated damaged to his right
ear.R. at 379. Audiometric testing was noted to be "highly inconsistent." R. at 380. The examiner stated that, while the appellant might have hearing loss, he would not cooperate with the testing.
 In May 2001, VA conducted another audiological examination. R. at 110. The appellant wasinitially uncooperative, but, after he was counseled, the results slightly improved. Audiometrictesting revealed normal right ear hearing and high frequency hearing loss in the left ear. R. at 100,110. In a VA otolaryngology consultation two days later, the appellant reported having subjectivehearing loss on the right and "okay" hearing on the left. R. at 261-62.In November 2004, VA conducted another audiological examination. R. at 382-84, 680-83.The appellant reported hearing loss over 34 years and military noise exposure. R. at 682. Theexaminer noted that upon entry into service the appellant demonstrated left ear hearing loss, and thataudiological testing in January 1974 (service separation examination) and November 1974 (VAaudiological examination) indicated the appellant's hearing was within normal limits. R. at 383, 681.He wrote that the tests from 1974 indicated that the appellant's "hearing had not been significantlyimpaired beyond normal limits by his service in the military."
The examiner also stated that"attempts to arrive at a repeatable, reliable threshold scores by behavioral testing have beenunsuccessful." R. at 383, 682. The examiner concluded that the appellant's results could not be usedfor rating purposes. R. at 384, 682. The examiner further opined that the December 1980 privateaudiometric test results, which showed significant bilateral hearing loss, could be also consideredquestionable, given the appellant's demonstrated results from the January 2001 and current November 2004 testing. R. at 383, 681.In October 2005, the appellant provided an additional statement that his right ear was injured by a hand grenade explosion. R. at 471-72. In November 2005, VA provided an audiologyconsultation. R. at 277-78. However, audiometric testing during that consultation could not be2
completed, as the appellant refused to respond.
. Despite the incomplete nature of theexamination, the appellant was diagnosed with hearing loss. R. at 278.In July 2007, a scheduled VA audiological examination was canceled because the appellantfailed to report for the examination. R. at 404. In August 2007, the appellant underwent a VAgeneral medical examination, during which he reported a history of hearing problems since 1971,due to the hand grenade explosion in service. R. at 314-16. In June 2009, the appellant submitteda statement that there was "no way" he would undergo any future examinations. R. at 86-89.Thereafter, he failed to report to a scheduled July 2009 examination. R. at 90. The appellant wasonce again scheduled to undergo a VA audiological examination in January 2010. R. at 62. He wasnotified by letter in January 2010 of the procedure to follow if he was unable to appear for thescheduled examination. R. at 58. In a January 2010 response, the appellant stated: "I'm not gonnaever go through any more ear exam's ever." R. at 56-57. As a result, the scheduled January 2010examination was canceled. R. at 61.In August 2010, the Board denied the appellant's claim of entitlement to service connectionfor hearing loss. R. at 2-19. This appeal followed.
Establishing service connection generally requires medical or, in certain circumstances, layevidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury;and (3) a nexus between the claimed in-service disease or injury and the present disability.
See Davidson v. Shinseki
, 581 F.3d 1313 (Fed. Cir. 2009);
 Hickson v. West 
, 12 Vet.App. 247, 253(1999);
Caluza v. Brown
, 7 Vet.App. 498, 506 (1995),
aff'd per curiam
, 78 F.3d 604 (Fed. Cir. 1996)(table)
A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4).
See Swann v. Brown
, 5 Vet.App. 229,232 (1993). "A factual finding 'is "clearly erroneous" when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistakehas been committed.'"
 Hersey v. Derwinski
, 2 Vet.App. 91, 94 (1992) (quoting
United States v.United States Gypsum Co.
, 333 U.S. 364, 395 (1948)). The Court may not substitute its judgment3

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