Citation Nr: 1303276	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  10-34 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Dale, Counsel


INTRODUCTION

The Veteran served in the Army Reserves and had a period of active duty for training (ACDUTRA) from June 17, 1961, to December 10, 1961, as well as prior and subsequent, unverified periods of Reserve service.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  

Clarification of Status as a Veteran 

As noted above, the Veteran's service department records reflect ACDUTRA and unverified periods of service in the Army Reserves.  There is no indication that the Veteran served on active duty.  An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status.  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).

However, in the April 2010 rating decision, the RO determined that tinnitus was incurred during this period of ACDUTRA, and thus, service connection for the disorder was granted.  Accordingly, veteran status has been established.  38 U.S.C.A. § 101(2), (21), (22)(a), (24)(b), (26), (27)(a) (2012); see also 38 C.F.R. §§ 3.1(d), 3.6(a), (c)(1) (2012). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In an April 2010 rating decision, the RO established service connection for tinnitus incurred due to noise exposure during a period of ACDUTRA, and thus, pursuant to 38 U.S.C.A. § 101(2), (24), the Veteran has status as a veteran during his period of ACDUTRA.  

2.  Bilateral hearing loss disability preexisted the Veteran's enlistment in the Army Reserves, and there is probative evidence that this disability was permanently aggravated during a period of ACDUTRA due to noise exposure incurred during the same.  


CONCLUSION OF LAW

The Veteran's preexisting bilateral hearing loss disability was aggravated by noise exposure incurred during a period of ACDUTRA.  38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385, 4.9 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

Duty to Notify 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. 

Inasmuch as the decision herein grants service connection for bilateral hearing loss disability, further development with regard to VA's duties to notify and assist as to the claim would serve no useful purpose.  In light of the favorable disposition of the Veteran's service connection claim, the question of whether the Veteran was appropriately informed of the evidence needed to substantiate the claim, or as to the division of responsibilities between VA and a claimant in developing evidence pertinent to the appeal, is a moot point. 

In any case, the Board notes that VA satisfied its duty to notify as to the claim by means of a November 2009 letter from VA to the veteran.  This letter informed the Veteran of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assignment of an effective date and disability rating in the event of award of service connection as the Court required in Dingess/Hartman.  

In Pelegrini v. Principi, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision.  Because complete VCAA notice in this case was provided prior to the initial AOJ adjudication denying the claim, the timing of the notice does comply with the express requirements of the law as found by the Court in Pelegrini. 

All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).

Duty to assist 

With regard to the duty to assist, the claims file contains the service treatment records and personnel records pertaining to the Veteran's period of ACDUTRA as well as his unconfirmed service, statements from the Veteran, reports of post-service VA treatment and a March 2010 audiological examination report with audiometric test results.  The Board notes that it is unclear whether the March 2010 examination was performed by VA or a private medical provider through QTC services.  Although there is no invoice showing that the examination was fee-based, the March 2010 VA examination report reflects that it was not performed at a VA facility.  

There is an indication that the Veteran's complete service treatment records pertaining to his periods of INACDUTRA in the Army Reserves are not of record, and, as will be discussed below, the medical opinion provided by the March 2010 examiner is inadequate for the purposes of adjudicating the Veteran's claim.  However, since the Board is granting the Veteran's claim in full, any deficiency in VA's duty to assist the Veteran is not prejudicial.  Moreover, a remand to obtain the Veteran's complete Reserve treatment records and an adequate nexus opinion would merely cause avoidable delay and would not result in any additional benefit to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  In light of above, the Veteran is not prejudiced by the Board's adjudication of his claim at this time.  Bernard, supra.  

Legal Criteria

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 preexisting injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  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 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 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.  As noted above, 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, Smith, and Donnellan, all supra.  

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 active duty for training, and when the individual became disabled or died from an injury incurred or aggravated in line of duty during a period of inactive duty training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6.

Service connection cannot be granted for a congenital or developmental defective.  See 38 C.F.R. §§ 3.303(c) and 4.9 (noting that a congenital or developmental defect is not considered a disease for purposes of VA disability compensation); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that if the disposition of a claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law).  An exception to the rule on developmental defects is if there is probative evidence of additional disability due to aggravation by superimposed disease or injury.  See Monroe v. Brown, 4 Vet. App. 513, 514- 515 (1993);Carpenter v. Brown, 8 Vet. App. 240, 245 (1995).

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 preservice 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).  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 ACDUTRA or inactive duty training (INACDUTRA).  Paulson, supra (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, supra (Steinberg, J., concurring).  Therefore, the Veteran is not entitled to a presumption of sound condition at entrance onto a period of ACDUTRA or INACDUTRA, 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) is 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).  

Analysis

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that bilateral hearing loss disability preexisted his service and was permanently aggravated beyond the normal progression of the condition during ACDUTRA by exposure to noise from "artillery simulators" on the "gun range" during the same.  (See a November 2009 statement from the Veteran.)  

After a review of the claims file, to include the Veteran's statements, service treatment records and the March 2010 VA examination report, the Board concludes that there is clear and unmistakable evidence that the Veteran's bilateral hearing loss disability preexisted his service and was permanently aggravated beyond the normal progression of the condition by exposure to excessive noise during his period of ACDUTRA between 17, 1961, to December 10, 1961.  

With respect to the first element of service connection, a current diagnosis, the Veteran was afforded an examination in connection with his claim in March 2010.  The March 2010 examination report does not specifically state that the Veteran's claims file was reviewed; however, the examiner listed the evidence reviewed in connection with the examination, and a review of this list reflects that the evidence in the claims file at the time of the examination was reviewed by the examiner.  An otoscopic examination was unremarkable, the Veteran's auricles were within normal limits, there was normal middle ear pressure, bilaterally, and acoustic reflexes were absent at 500 Hz, 1000 Hz and 2000 Hz, bilaterally.  A Stenger test was not performed.  Upon audiometric testing, pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
70
65
70
80
95
LEFT
65
75
70
75
95

These audiometric results meet the criteria for VA hearing loss disability under 38 C.F.R. § 3.385, and severe sensorineural hearing loss was diagnosed.  Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met.  

In evaluating the second element of service connection, that of in-service incurrence of an injury or disease, 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a) provide that due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  As noted above, the Veteran asserts that he was exposed to noise from "artillery simulators" on the "gun range" during his period of ACDUTRA.  

The Veteran's service records reflect that he enlisted in the Army Reserves in January 1961.  In a January 1961 report of medical history, the Veteran reported "ear, nose, or throat trouble," and a statement (which is hand-written on some copies of the January 1961 entrance examination report and typed on other copies), reflects that the Veteran "alleges hearing loss."  Clinical evaluation of the Veteran's ears was normal.  The January 1961 enlistment examination report includes audiometric testing results.  The Board notes that service department audiometer test results prior to October 31, 1967 are assumed to have been reported in American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) units.  Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz.

When the January 1961 audiometric results are converted to the current ISO standard, they are as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
35
40
30
LEFT
30
35
40
35
30

The Veteran was qualified for full duty, but he was assigned a "2" in the physical profile box (PULHES) for hearing.  (In a physical profile block on an examination report there are six categories (P, U, L, H, E, S), including "H" for hearing.  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992), quoting Para. 9-3(c)(1) AR 40-501, Change 35 (Feb. 9, 1987).  "PULHES" reflects overall physical and psychiatric condition on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).  The Veteran was assigned a "Physical Category" of "B."  

The Board notes that the January 1961 audiometric results reflect not only a degree of hearing loss in both ears as per Hensley, but hearing loss disability for VA purposes in both ears as per 38 C.F.R. § 3.385 upon entrance to the Army Reserves in January 1961.  

If a preexisting disorder is noted upon entry into service, the Veteran cannot claim service-connected incurrence for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).

As set forth above, the January 1961 enlistment examination report reflects that the Veteran had hearing loss disability for VA purposes in both ears as per 38 C.F.R. § 3.385 upon entrance to the Army Reserves in January 1961.  If a Veteran is found to have had a preexisting disability and there is an increase in that disability during service, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be presumed to have been aggravated during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  However, as service connection based on a period of ACDUTRA requires the presence of a disease or injury during service, service connection may only be established by direct evidence both that a worsening of the disorder occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA.  Smith, 24 Vet. App. at 48.  Any increase in severity must also be permanent.  Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity.  Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002); see Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

The Veteran has the responsibility to establish an increase in severity.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  Such increase must be shown through independent medical evidence.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  If there is no evidence of injury, complaints, or treatment of the preexisting disability in service, an increase in severity has not been shown.  

The nature of the Veteran's service in the Army Reserves between January 19, 1961 and June 17, 1961 (when he was ordered to ACDUTRA) is unconfirmed.  The Veteran's DD Form 214 for his service in the Army Reserves from June 17, 1961, to December 10, 1961, refers to this period as "other service."  A January 1961 entrance examination and a document showing that the Veteran was vaccinated in March 1961 are the only medical records showing treatment during this period of service.  However, the records dated after the Veteran was ordered to ACDUTRA on June 17, 1961, are replete with evidence of noise exposure (an injury) as well as instances of complaints of and treatment for the Veteran's preexisting bilateral hearing loss disability.  

The Veteran's DD Form 214 for his service in the Army Reserves from June 17, 1961, to December 10, 1961 reflects that his Military Occupational Specialty (MOS) during his period of ACDUTRA was "General Clerk;" an MOS which is not commonly associated with exposure to excessive noise.  However, the DD Form 214 also reflects that he was decorated as a rifle marksman.  As noted above, the Veteran asserted that his in-service exposure to noise occurred on the "gun range" during training rather than while performing his duties associated with his MOS.  The Veteran's service records reflect that, during his period of ACDUTRA, he participated in several trainings, to include basic combat training, unit training and "ADU INDIU" training.  It is reasonable that the Veteran was exposed to noise from the "gun range" during these trainings.  Further, during the Veteran's period of ACDUTRA, he qualified for the Marksman Badge.  Therefore, his exposure to acoustic trauma during ACDUTRA is conceded as consistent with the circumstances of this period of service.  38 U.S.C.A. § 1154(a) (West 2002).

In order to establish service connection for bilateral hearing loss disability, the Veteran must still show that his currently claimed disability is related to the noise exposure during his ACDUTRA by way of aggravation.  

On July 10, 1961, the Veteran presented for medical treatment complaining of continuous ringing in his ears for the past four days.  The Veteran returned for treatment of this condition on July 28, 1961, and at that time, the assessment was "traumatic deafness - Temporary from range."  The Veteran was prescribed medication for headaches.  On September 20, 1981, the Veteran sought medical treatment for continued complaints of tinnitus and headaches.  The Veteran's "H-2" hearing profile was cited, and the medical professional noted the Veteran's in-service acoustic trauma and alluded to a congenital defect.  The Veteran again sought medical treatment for ringing in his ears and decreased hearing acuity in October 1961.  At that time, the medical professional noted that the Veteran should be scheduled for an ENT appointment.  

On November 7, 1961, the Veteran underwent an "AFRA Separation" examination.  The report of this examination reflects that the Veteran's ears were normal upon clinical evaluation.  On a report of medical history, the Veteran endorsed experiencing "ear, nose, or throat trouble" and reported that he underwent "a minor ear operation" when he was seven years old.  Although it appears that an audiogram was performed, only partial results are reflected on the examination report.  When the November 7, 1961, audiometric results are converted to the current ISO standard, they are as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
NA
NA
NA
NA
35
LEFT
NA
NA
NA
NA
35

The results of this audiogram, although not complete, show that the Veteran's hearing acuity had decreased, bilaterally.  As such, the Veteran's "Physical Category" was downgraded from "B" to "C," and he was noted to be qualified for "AFRA Separation."  Curiously, despite the audiometric test results showing decreased hearing acuity, the Veteran was assigned a "1" in the physical profile box (PULHES) for hearing.  However, it appears that this was a clerical error.  The Veteran's service department records reflect that his "Physical Category" was assigned as "C," and his physical profile for hearing was assigned as "3" in November 1961.  

Thereafter, the Veteran underwent three separate audiometric evaluations in late-November 1961.  The first of these audiological evaluations took place on November 24, 2961.  When the November 24, 1961, audiometric results are converted to the current ISO standard, they are as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
40
NA
35
LEFT
30
35
40
NA
35

Weber test was not lateralized, and the examiner noted a negative pure tone Stenger test, although the report does not differentiate between the Veteran's right and left ears.  Bone conduction results were also provided, and the Board notes these results (reported in decibel losses) were equal to or less than the reported air conduction results at all tested levels.  

The Veteran presented for additional audiometric evaluation on November 27, 1961.  When the November 27, 1961, audiometric results are converted to the current ISO standard, they are as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
40
NA
40
LEFT
30
35
40
NA
35

Weber and Stenger test results were not reported.  Bone conduction results were also provided, and the Board notes these results (reported in decibel losses) were equal to or less than the reported air conduction results at all tested levels.  The medical professional noted that a Rinne test was performed, but there is no indication concerning whether the result was positive or negative.  

Further audiometric testing was performed on November 28, 1961.  When the November 28, 1961, audiometric results are converted to the current ISO standard, they are as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
40
NA
30
LEFT
30
35
40
NA
40

Weber test was not lateralized, and the examiner noted a negative pure tone Stenger test with sensitivity in both ears at 34 decibels.  Bone conduction results were also provided, and the Board notes these results (in decibel losses) were equal to or less than the reported air conduction results at all tested levels except in the right ear at 4000 Hz.  

On November 28, 1961, the Veteran also underwent a separation physical from his period of ACDUTRA.  The November 1961 separation examination report reflects the Veteran's reports of "ear, nose, or throat trouble."  Upon clinical examination, the Veteran's ears were normal.  The medical professional noted the Veteran's complaints of constant ringing in his ears as well as his report that he had "some ear trouble around the age [of] 5 or 6" although the exact history was not known.  The Veteran was qualified for "AFRA Separation," he was assigned a "3" in the physical profile box for hearing, and he was assigned a "Physical Category" of "C."  

An ENT Clinic note dated on December 2, 1961, reflects that the Veteran had been diagnosed with bilateral percent hearing loss, which existed prior to service (noted in the record as "EPTS") and was "slightly increased."  This record also indicates that the Veteran's physical profile is "H-3."

A DA Form 1049 (Personnel Action) dated on December 4, 1961, reflects that, because of the results of the audiometric testing at the ENT clinic in late-November 1961, the Veteran's "profile serial" was changed to "3" for hearing.  This change was noted to be because of diagnosed bilateral perceptive deafness due to acoustic trauma.  It was determined that this condition was permanent.  It was recommended that the Veteran be given no duty assignments exposing him to further loud noises, blasts, or concussions.  Despite this limitation, the Veteran was not excused from familiarization or qualification of firing weapons, but it was advised that proper ear protection be worn.  

On December 10, 1961, the Veteran was returned to the Army Reserves to complete his obligation.  There are no records addressing the presence or absence of a bilateral hearing loss disability between December 4, 1961, and the Veteran's discharge from the Army Reserves on December 31, 1966.  In either October or November 1961, the Veteran qualified as an expert with the Carbine firearm.  

As noted above, the question before the Board is whether the Veteran's preexisting bilateral hearing loss disorder worsened during his period of ACDUTRA due to noise exposure therein.  

The March 2010 examiner opined that the Veteran's bilateral hearing loss disability was less likely than not related to his military noise exposure.  The examiner provided rationale for this opinion, noting that, under VA standards, "the [V]eteran had normal hearing sensitivity in both ears upon enlistment and separation from the Army[,] and there was not a significant degradation of hearing thresholds," during the Veteran's service.  (See the March 2010 examination report.)  Further, an April 2010 VA Form 21-0820 (Report of General Information) reflects that, an RO employee contacted the March 2010 examiner by telephone and requested clarification concerning whether the Veteran's bilateral hearing loss disability was aggravated during service.  This record reflects that the examiner opined that the condition was not aggravated during service because there was "no significant change in hearing [acuity] in service."  (See an April 2010 VA Form 21-0820.)  

The Board concludes that the March 2010 examiner's opinions are inadequate.  Specifically, the Board notes that the examiner's rationale for the stated opinions is contradicted by the evidence, recounted above, showing that the Veteran demonstrated bilateral hearing loss disability under 38 C.F.R. § 3.385 upon enlistment in the Army Reserves in January 1961 which worsened throughout his period of ACDUTRA between June 17, 1961, to December 10, 1961.  As the March 2010 examiner's opinions are based on inaccurate facts, they are afforded little, if any, probative value.  See Reonal v. Brown, 5 Vet. App. 458 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record).  

The Board notes that there is ample evidence that the Veteran's noise exposure during his period of ACDUTRA caused a permanent worsening of his preexisting bilateral hearing loss disability during the same.  This evidence, recounted above, reflects that the Veteran presented for treatment of audiological symptomatology on multiple occasions between July 1961 and December 1961.  These treatment records reflect the Veteran's noise exposure during his period of ACDUTRA as well as a worsening of his preexisting bilateral hearing loss disability.  Indeed, although this condition was noted to be "temporary" in the July 1961 treatment record, the nature of the condition was noted to be permanent on the December 4, 1961, DA Form 1049.  Further, the evidence reflects that, due to the Veteran's deteriorating hearing acuity during his period of ACDUTRA, his physical profile was changed from "H-2" to "H-3," and his assigned "Physical Category" was downgraded from "B" to "C" on November 28, 1961.  

In sum, the evidence reflects that the Veteran had preexisting bilateral hearing loss disability, that he was exposed to loud noises during his period of ACDUTRA, that his hearing acuity permanently decreased during his period of ACDUTRA, and that the Veteran's permanent decrease in hearing acuity during his period of ACDUTRA was the result of noise exposure during the same.  

Based on the foregoing, the Board finds that the Veteran's preexisting bilateral hearing loss disability was aggravated during ACDUTRA by exposure to noise incurred during a period of ACDUTRA.  As such, entitlement to service connection for a bilateral hearing loss disability is warranted.


ORDER

Entitlement to service connection for bilateral hearing loss disability is granted.  



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



Department of Veterans Affairs