Citation Nr: 1237863	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  07-31 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

H. Yoo, Counsel



INTRODUCTION

The Veteran had active service from July 1971 to May 1974 and from January 2003 to January 2004, with service in the Army National Guard between these periods of service (beginning in June 1988 and after January 2004). 

This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2004 by the Department of Veterans Affairs (VA) Decatur, Georgia Regional Office (RO).  This appeal has subsequently been transferred to the Atlanta, Georgia, RO.

In December 2009 and June 2011, the Board remanded this matter for further development.  The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. When resolving all reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran's bilateral hearing loss is related to acoustic noise exposure during service. 

2. When resolving all reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran's tinnitus is related to acoustic noise exposure during service. 




CONCLUSION OF LAW

1. The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.385 (2011).

2. The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.385 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be discussed further.

II. Merits of the Claim

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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  With chronic disease 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 causes.  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).  Service connection may also 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). 

In addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307 , 3.309.

Active military, naval, or air service includes any period of active duty for training  (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate.  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1). 

A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A § 1153; 38 C.F.R. § 3.306(a). 

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during wartime service.  This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 U.S.C.A § 1153; 38 C.F.R. § 3.306(b).

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,  1 Vet. App. 49 (1990).

Hearing Loss

The Veteran claims service connection for bilateral hearing loss which he asserts is the result of acoustic trauma sustained as a mechanic during active duty and in the National Guard.  He stated that during the course of performing his duties he was exposed to loud engine noise and did not have hearing protection.  The Board finds that the Veteran is both competent and credible to report on the fact that he was exposed to loud noises during service and that he suffered from decreased hearing acuity.  Jandreau v. Nicholson, 492 F. 3d 1372 (2007).  The Veteran has also alleged that an ear infection during his first period of active duty also contributed to his hearing loss.  

Impaired hearing is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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.

The Court has held in Hensley v. Brown, 5 Vet. App. 155 (1993), that the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011); Hensley, 5 Vet. App. at 159-60.

According to the Veteran's service treatment records from his first period of active duty (1971 to 1974), there are no complaints, diagnosis, or treatment for hearing loss.  There is, however, a February 1974 service treatment record, reporting complaint, treatment, and diagnosis of right ear otitis.  The Veteran's March 1974 separation examination report reveals normal evaluation of the ears.  There is no indication of residuals of the right ear otitis or hearing loss.

Initially, the Board observes that the Veteran's hearing loss originated outside of his military service as evidenced by the service treatment records.  The first instance of hearing loss was reported in a January 1988 medical examination report for enlistment into the Army National Guard.  Therefore, the Board must address whether this preexisting disability was aggravated during his National Guard service during ACDUTRA or INACDUTRA.  As detailed below, the Board finds that such aggravation did occur in this case.

According to the January 1988 National Guard enlistment examination, the audiometric testing revealed puretone threshold as the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
10
45
LEFT
5
0
0
10
40

During the Veteran's service in the National Guard he has undergone numerous health assessments which include several audiological examinations.  The audiometric testing revealed puretone threshold as the following:





December 1991




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
20
40
LEFT
0
0
5
20
60

April 1993




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
45
LEFT
10
10
10
15
60

July 1995




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
15
45
LEFT
5
5
0
25
65

June 1997




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
15
45
LEFT
5
0
0
30
65


November 2002




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
35
50
LEFT
15
0
0
30
70

February 2004




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
40
60
LEFT
15
10
5
30
70

In September 2004, the Veteran was afforded a VA examination where the audiometric testing revealed puretone threshold as the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
55
75
LEFT
15
20
10
40
--

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 92 percent in the left ear.  The examiner determined the Veteran's hearing was within normal limits between 500 Hz and 2000 Hz bilaterally with moderately severe to severe sensorineural hearing loss in the right ear and 3000 Hz and 4000 Hz, and mild to severe sensorineural hearing loss in the left ear at 3000 Hz and 4000 Hz.  The examiner acknowledged the Veteran had normal hearing at separation from his first period of active duty  but "[s]ince that time, he reported a significant history of nonmilitary noise exposure, as well as some noise exposure while serving in the Army National Guard.  Due to significant nonmilitary noise exposure reported and the lack of documentation of hearing loss that may be attributed to military service, I feel I cannot resolve this issue without resorting to mere speculation." 

Finally, the Veteran underwent another VA examination in February 2011.  Here, the Veteran reported bilateral hearing loss and tinnitus worsened since he had a painful infection in both ears.  The audiometric testing revealed puretone threshold as the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
60
75
LEFT
15
10
10
45
85

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  Upon examination and a review of the evidence of record, the examiner opined that the Veteran's hearing loss was not related to the infection shortly before separation from his first period of active duty as "there is no current evidence of middle ear pathology, and no conductive [hearing loss] which would typically be associated with [an] ear infection."  The examiner acknowledged that the first evidence of hearing loss was at enlistment into the National Guard in January 1988.  Since then, the high frequency hearing loss worsened during the Veteran's National Guard service as evidence by the audiograms from 1993 to 2003.  The examiner opined that the hearing loss did not change during the most recent period of active duty from February 2003 to January 2004.  Therefore, the examiner determined the hearing loss was not aggravated by the Veteran's second period of active duty service. 

Based on the evidence of record and the February 2011 examiner's conclusions, the Board finds evidence of aggravation of the Veteran's hearing loss.  The Board acknowledges that despite efforts to locate the exact dates of the Veteran's ACDUTRA and INACDUTRA, the February 2011 VA examiner concluded that "high frequency [hearing loss] shown at [the January 1988] exam worsened during inactive duty, as evidenced by audios from 1993 to [February] 2003."  The Board finds that the examiner erroneous identified the Veteran's National Guard duty as "inactive duty."  Nevertheless, it is significant that worsening of the Veteran's preexisting hearing loss was recognized. 

As such, the Board finds that the evidence for and against the claim is in equipoise. Thus, resolving all doubt in the Veteran's favor, the hearing loss that preexisted his National Guard service, was aggravated and, therefore, service connection for such disability is warranted.

Tinnitus

As previously stated, the Veteran contends that his tinnitus resulted from acoustic trauma that he sustained has a mechanic during active duty and service in the National Guard.  He reported that during the course of performing his duties as a mechanic during active duty and National Guard service he exposed to loud engine noise.  The Board accepted these contentions.

According to service treatment records during active duty and National Guard service, there are no indications or complaints or treatment for tinnitus. 

During the February 2004 VA examination, the Veteran reported his tinnitus was constant in the left ear, which sounded like "locusts."  He stated he experienced tinnitus for several years and worsened since October 2003.  At the September 2004 VA examination, the Veteran reported bilateral tinnitus for the past few years.  He stated the tinnitus was constant and moderate on the left side but intermittent and mild on the right side.  He stated that the tinnitus sounded like a high-pitched buzz on the left side and a ringing on the right side.  

The Board finds the Veteran is competent to report as to his own symptoms, and the Board finds the Veteran's history of experiencing tinnitus since service credible and consistent with the nature and circumstances of his service as a fire support specialist.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2008); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (the layperson may be competent to identify the condition where the condition is simple). 

While there are no medical treatment records confirming a diagnosis for tinnitus in or an opinion whether the Veteran's reported symptoms are related to his military service, the Board finds the medical evidence is at least in relative equipoise on this issue.  When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the veteran.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Therefore, based on the totality of the evidence of record, the Board finds that evidence for and against the claim for service connection for tinnitus is at least in approximate balance.  In other words, the record presents a reasonable doubt that the Veteran's tinnitus had its onset during his military service which includes active duty, periods of ACDUTRA and INACDUTRA in the National Guard, and has continued until now.  The Board will resolve that doubt in the Veteran's favor and grant service connection for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


REMAND

Unfortunately, another remand is required on the issue of service connection for hypertension on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 

In the December 2009 and June 2011 remands, the Board requested that the RO/AMC confirm the Veteran's National Guard service dates, specifically to include dates and periods of  ACDUTRA and INACDUTRA. 

Accordingly, the AMC requested verification of the Veteran's National Guard service dates from various government sources.  Numerous personnel records were received but they do not absolutely confirm any periods of ACDUTRA or INACDUTRA.  Based on the efforts to obtain this information and issued statements regarding its unavailability, given the history of attempts evidence in the claims file, the Board finds that further attempts would be futile. 

According to the Veteran's service treatment records during the first period of active duty, there is no complaint or treatment for hypertension.  The separation examination of March 1974, the Veteran had a diastolic blood pressure of 88 and a systolic blood pressure of 128 at the time of separation.  Furthermore, the Veteran reported in his report of medical history that he was in good health. 

During the years between the Veteran's two periods of active duty, the records indicate he was diagnosed and treated for high blood pressure.  For example, in a treatment record, dated November 2002, the Veteran stated he was taking Accupril and had a diastolic blood pressure of 90 and a systolic blood pressure of 144.  

The Board notes that the Veteran has not been afforded an opportunity to undergo a VA examination.  As such, the Veteran should be scheduled for an examination in support of his hypertension claim.  The examiner should review all evidence of record, and should provide an opinion as to the nature and etiology of the Veteran's diagnosed hypertension.  

While it is true that the dates of the Veteran's periods of ACDUTRA and INACDUTRA are apparently unavailable, and that it would be pure speculation to say that his hypertension was incurred in any such period, in order to afford him every possible consideration, the Board finds that an opinion on whether his hypertension was aggravated at any time during his National Guard service (from June 1988 to January 2003 and after January 2004) is warranted.  Thus, the examiner is asked to state whether the Veteran's hypertension was aggravated beyond the natural progression of the disease during his National Guard service. 

Further, while not previously addressed in its previous Remands, nor specifically argued by the Veteran, an opinion should be given as to the likelihood of there being an etiological relationship between the Veteran's hypertension and his service-connected disabilities, to include the medications he takes to treat those disabilities.  The Veteran is currently service-connected for residuals of the left first finger interphalangeal joint amputation, bilateral hearing loss, and tinnitus.

Accordingly, the case is REMANDED for the following action:

1. The RO should schedule the Veteran for an appropriate VA examination for the purpose of determining whether his diagnosed hypertension is related to his active duty military service.  The examiner is specifically asked to answer whether it is at least as likely as not (probability of 50 percent or more) that any diagnosed hypertension was incurred in or aggravated by any incident, disease, or injury during active duty service?  

If not, is it likely, unlikely, or at least as likely as not that such diagnosed disorder had its onset during a period of active duty, to include a period of active duty for training in the National Guard.  Specifically, the examiner should determine whether the Veteran has hypertension as a result of a disease or injury incurred or aggravated in the line of duty during a period of active duty for training and/or whether such disorders are otherwise related to his active service. 

The examiner is also asked to provide an opinion as to whether it is as likely as not that the Veteran's hypertension was caused or aggravated by her service.

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology.  Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

2. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs