Citation Nr: 1301393	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  10-39 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for left ear hearing loss.

2. Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel
INTRODUCTION

The Veteran had a period of active duty for training from June 1968 to January 1969, with additional service in the Army Reserves and in the Minnesota Army National Guard. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota.  

In October 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of that hearing is of record.  In October 2011 and November 2011, the Veteran submitted additional written evidence to the Board, along with a signed waiver of RO consideration of that additional evidence in accordance with 38 C.F.R. § 20.1304 (2012).

The Veteran and the RO originally characterized the issue on appeal as entitlement to service connection for bilateral hearing loss.  Here, the Board has recharacterized the matter as two separate service connection issues, for left ear hearing loss and right ear hearing loss, respectively, to better reflect the evidence of record.  

The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The most probative competent medical evidence of record demonstrates the Veteran's left ear hearing loss disability is etiologically related to noise exposure in active military service.



CONCLUSION OF LAW

Left ear hearing loss disability was incurred during a period of active duty for training.  38 U.S.C.A. §§ 101(24), 1101, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim.  

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence 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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

A "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see also Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

There is a clear distinction between individuals who serve on active duty and those who only serve on ACDUTRA.  An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and be entitled to disability compensation benefits.  Further, the burden to establish "veteran" status for a claim based on a period of ACDUTRA is on the appellant.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010).

Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of ACDUTRA, and when the individual became disabled or died from an injury incurred or aggravated in line of duty during a period of INACDUTRA.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6.

Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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).  For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. § 3.306(b).  Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

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 C.F.R. § 3.306(b).  With respect to periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases.  38 U.S.C.A. § 101(23), (24); Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty").  Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training or inactive duty training.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring).  Therefore, the appellant is not entitled to a presumption of sound condition at entrance onto a period of active duty for training or inactive duty training, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, including hearing loss, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service.  In other words, the application of 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) are not available with respect to periods of ACDUTRA or INACDUTRA. 

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The Veteran asserts that his current left ear hearing loss is due to exposure to loud noises in active military service.  He describes exposure to loud noises from generators and engines.

A December 1967 report of medical history indicates the Veteran denied a history of hearing loss and ear trouble of any kind.  A December 1967 examination reflects a notation of a hearing deficit.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
25
-
30
LEFT
5
5
5
-
0
  
On a June 1968 report of medical history, the Veteran reported a history of hearing loss.  The examiner noted a loss of hearing in the right ear had begun within the past three months.  On examination, a hearing defect of the right ear was noted, although the Veteran's ears were deemed normal.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
30
-
30
LEFT
5
10
15
-
10
  
On the December 1968 report of medical history, the Veteran reported a history of ear trouble but denied a history of hearing loss.  It was noted that right ear hearing loss had been found approximately two months ago, although the Veteran denied noticing any hearing difficulty during his daily routine.  On examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
-
25
LEFT
15
15
15
-
15

Service treatment records from the Veteran's service with the Minnesota Army National Guard demonstrate diagnoses of chronic hearing loss.

A January 2009 private treatment record reflects pure tone thresholds, in decibels, of:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
35
65
70
70
LEFT
20
35
50
60
55

On VA examination in March 2010, the Veteran reported a history of military noise exposure for over 20 years while working for a communication company in close proximity with generators.  The Veteran asserted hearing protection was not issued originally, and although it was issued later, it was sometimes difficult to find and sometimes went missing.  The Veteran also reported an occupational history of noise exposure from working as a sprinkler fitter for 22 years and from working with a drill press and welder for a short period of time.  He stated he would wear ear protection if the environment was noisy.  The Veteran also reported recreational noise exposure while drag racing, although he asserted he always wore ear protection.  On examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
55
70
70
LEFT
30
40
60
60
55

Speech discrimination tests revealed 92 percent word recognition bilaterally.  The VA examiner diagnosed bilateral sensorineural impairment.  The VA examiner reviewed the Veteran's claims file and observed that the induction examination and discharge examination showed hearing loss in both ears by VA standards.  The VA examiner noted that despite the existing hearing loss on induction, there was a significant shift in thresholds from induction to discharge.  As a result, the VA examiner opined that the Veteran's current hearing impairment was at least as likely as not caused by or aggravated by military noise exposure.

The Veteran underwent an additional VA examination in May 2010.  On examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
55
60
65
LEFT
25
35
50
60
65

Speech discrimination tests reflected 96 percent word recognition in the right ear and 94 percent word recognition in the left ear.  The VA examiner diagnosed mild to moderate sensorineural impairment in both ears.  As the claims file was not made available for review, the VA examiner did not provide an etiological opinion with respect to the Veteran's current hearing loss.

On VA examination in July 2010, the Veteran reported a history of military noise exposure due to weapons fire in basic training, occupational noise exposure from sprinkler systems, and no recreational noise exposure.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
60
55
55
LEFT
25
30
45
45
50

Speech discrimination tests revealed 90 percent word recognition in the right ear and 96 percent word recognition in the left ear.  The VA examiner diagnosed bilateral sensorineural impairment.  Because the Veteran's medical records were not available for review, the VA examiner stated he could not resolve the issue without resorting to mere speculation.  If no records existed, the VA examiner opined that it was at least as likely as not that the Veteran's current hearing impairment was caused by or the result of military noise exposure.  

Later in July 2010, the Veteran's claims file was provided to a VA examiner for clarification of the July 2010 VA opinion.  Upon review, the VA examiner stated that the Veteran's June 1968 entrance examination and December 1968 separation examination revealed normal hearing.  The VA examiner opined that because the discharge examination showed normal hearing, the Veteran's current neuro-sensory hearing loss was not related to military noise exposure.  The VA examiner also found it was more likely than not that the Veteran's current hearing loss was not related to his service in the Reserves because normal life experiences would far outweigh any such noise exposure.  The VA examiner rationalized that since Reserve duty only involved monthly weekend duty and two weeks during the year, it represented, at most, 10 percent of the Veteran's lifetime noise exposure, whereas normal life experiences in general society accounted for 90 percent of the noise exposure.

The Veteran submitted an October 2011 private treatment record demonstrating a diagnosis of bilateral symmetrical sensorineural hearing loss, a configuration which the physician opined was generally associated with noise-induced hearing loss.

At the October 2011 Travel Board hearing, the Veteran's representative asserted that the July 2010 VA examiner's opinion was based on an inaccurate factual premise.  The representative argued that the service treatment records demonstrated a threshold shift of 10 decibels for the left ear, which was significant according to case law.

The Veteran also submitted an October 2011 letter from a private physician who reported that she had examined the Veteran and reviewed the Veteran's information, to include his entrance examination and separation examination and statements made by VA.  The private physician opined that it was at least as likely as not that the Veteran's current bilateral sensorineural hearing loss was caused by or the result of his military noise exposure.  The private physician stated that her rationale was based on a review of the records and the type of hearing loss diagnosed, including the high frequency notch consistent with a noise notch and threshold shift.

The Board has reviewed the entire record, and finds that, resolving all doubt in the Veteran's favor, the evidence supports an award of service connection for left ear hearing loss.  See Hickson, supra; 38 U.S.C.A. § 5107(b).  First, the Board notes that service connection for left ear hearing loss cannot be granted on a presumptive basis because the Veteran is claiming service connection based on a period of ACDUTRA.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995).  However, the Veteran may still establish service connection under other service connection principles.  See Combee v. Principi, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In summary, the results of the May 2010 and July 2010 VA examinations reflect current left ear hearing loss that meets the requirements of disability for VA purposes under 38 C.F.R. § 3.385.  As a result, the Board finds the Veteran has established a current disability for purposes of service connection.  Additionally, the Board finds the Veteran's testimony that he was exposed to loud noises in service is consistent with the circumstances of his service and is competent and credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  Therefore, the Board finds the Veteran has established an in-service event for the purpose of service connection.  

Here, the record contains conflicting medical opinions regarding whether the Veteran's current left ear hearing loss is related to military noise exposure.  First, the Board finds the first July 2010 VA examiner's opinion to be of minimal probative value for the purpose of determining service connection as the VA examiner admitted to the speculative nature of the opinion.  In this respect, the Court of Appeals for Veterans Claims has held that a failure to review the claims file renders a VA examination inadequate for rating purposes.  See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 932   (1992).  The later July 2010 VA opinion is also of minimal probative value as the rationale provided, that the discharge examination showed normal hearing, is inadequate based on applicable law which provides that service connection may be established for disability initially demonstrated after service if shown to be etiologically related to service.  38 C.F.R. § 3.303(d).

In support of the Veteran's claim, the March 2010 VA examiner found that the Veteran's service treatment records demonstrated a significant shift in thresholds from induction to separation.  As a result, the VA examiner opined it was at least as likely as not that the Veteran's current hearing loss was caused or aggravated by military noise exposure.  Additionally, the October 2011 private physician opined that the Veteran's current hearing loss was at least as likely as not caused by or the result of military noise exposure based upon a review of the records and the type of hearing loss diagnosed, including the high frequency notch consistent with a noise notch and threshold shift.  

Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  
Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).

In weighing the contrasting, competent medical opinions, the Board affords the opinions provided by the March 2010 VA examiner and the October 2011 private physician significant probative value.  Both appear to be based on a review of the Veteran's records and specifically note the threshold shift in left ear hearing shown by the Veteran's induction and separation examinations.  Conversely, the later July 2010 VA examiner based the analysis solely on the fact that hearing loss disability, per VA regulations, was not demonstrated on the separation examination.  In this respect, the absence of documented hearing loss disability while in service is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Therefore, the Board finds the July 2010 VA examiner's opinion less probative than the positive opinions provided by the March 2010 VA examiner and the October 2011 private physician.  Here, the competent medical evidence of record supports entitlement to service connection for left ear hearing loss.   

Accordingly, the Board finds service connection is warranted for left ear hearing loss disability.  All reasonable doubt has been resolved in favor of the Veteran in making this decision.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Service connection for left ear hearing loss disability is granted.



REMAND


The December 1967 and June 1968 examinations reflect that some degree of right ear hearing loss preexisted service, as the threshold for normal hearing for VA purposes is from 0 to 20 decibels.  Hensley, 5 Vet. App. at 157.  Therefore, the appropriate question at issue is whether any preexisting right ear hearing loss was aggravated by military noise exposure.  In this respect, the December 1968 separation examination does not show an in-service threshold shift for the Veteran's right ear hearing.  Rather, the Veteran's right ear hearing appears to have slightly improved at the 2000 Hertz and 4000 Hertz levels.  The Board acknowledges that the March 2010 VA examiner and October 2011 private physician provided positive nexus opinions with respect to the Veteran's current bilateral hearing loss and military noise exposure.  However, it appears the March 2010 VA examiner and the October 2011 private physician based their respective opinions on a threshold shift, which, although applicable to the Veteran's left ear hearing in service, is not supported by the evidence of record with respect to the Veteran's right ear hearing.  As such, the Board finds these two positive opinions were predicated on an inaccurate factual basis with respect to the Veteran's right ear hearing and therefore are not probative as to the issue of concern.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Hadsell v. Brown, 4, Vet App. 208, 209 (1993).  Additionally, the Board finds the negative opinion provided by the second July 2010 VA examiner is inadequate as it was based on the absence of a hearing loss disability at separation, which, as noted above, is not fatal to a claim for service connection.  Ledford, 3 Vet. App. at 89.  

As it is still unclear whether the Veteran's preexisting right ear hearing loss was aggravated by in-service noise exposure, the Board finds a remand is warranted for an additional examination.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination).  Notably, the examination conducted pursuant to this remand should include an opinion from the examiner as to whether the preexisting right ear hearing loss as demonstrated on the December 1967 and June 1968 examinations was aggravated beyond its natural progression during service.
  
Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for an additional VA audiological examination to determine whether the Veteran's preexisting right ear hearing loss was aggravated by service beyond that expected due to the natural progression of the disease.  The VA examiner should identify the evidence upon which this opinion is based.  The claims file and all relevant records from the Veteran's Virtual VA electronic record should be made available to the examiner, and the examiner should specify in the examination report that the claims file and Virtual VA records have been reviewed.  All pertinent symptomatology and findings must be reported in detail.  After a thorough review of all the evidence of record, to include the Veteran's service treatment records, military occupational specialty,  reported history of in-service and post-service noise exposure, and with consideration of the Veteran's statements regarding his in-service and post-service symptoms, the examiner should answer the following question:

Is it at least as likely as not (i.e. is there a 50/50 chance) that any preexisting right ear hearing loss was aggravated beyond the natural progression of the disease as the result of military noise exposure?  

The examiner must note that under applicable case law, the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Additionally, the examiner is reminded that VA laws and regulations do not preclude service connection where a hearing loss "disability" for VA purposes (pursuant to 38 C.F.R. § 3.385) was not shown at the time of separation from service.  

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

The examiner should set forth a complete rationale for all opinions expressed and conclusions reached.  If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge.

2. Thereafter, re-adjudicate the Veteran's claim for entitlement to service connection for right ear hearing loss.  If the benefit sought on appeal is not granted, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs