Citation Nr: 1308044	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  06-20 032	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The Veteran served on active duty from January 1967 to June 1970.  He had subsequent service in the U.S. Navy Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

The case was most recently before the Board in August 2011.  At that time, the Board denied entitlement to service connection for bilateral hearing loss.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In January 2012, the Veteran's representative before the Court and VA's General Counsel filed a Joint Motion for Remand (JMR).  By an Order dated later than month, the Court granted the JMR.  The Board's August 2011 decision was vacated and the case was remanded to the Board for action consistent with the terms of the JMR.

In February 2013, the Veteran submitted additional evidence to the Board.  He waived review of the newly submitted evidence by the RO.  See 38 C.F.R. § 20.1304(c).  Thus, the Board will consider such evidence in the adjudication of this appeal.


FINDING OF FACT

The onset of the Veteran's bilateral hearing loss was as likely as not during a period of active duty for training.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted.  38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.385 (2012); see also Hensley v. Brown, 5 Vet. App. 155 (1993).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the Veteran's claim is being granted to the fullest extent sought, any error in VA's duties to notify and/or assist him is non-prejudicial.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may also be granted for a 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). 

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 500, 1000, 2000, 3000, or 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id; see also 38 C.F.R. § 3.385.

The term "active military, naval, or air service" is defined to include active duty, 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 line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C.A. § 101(24); see also 38 C.F.R. § 3.6(a).  ACDUTRA includes, inter alia, full time duty in the Armed Forces performed by Reserves for training purposes.  38 U.S.C.A. § 101(22); see also 38 C.F.R. § 3.6(c)(1).

For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods.  For 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(22), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting 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 ACDUTRA or INACDUTRA.  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); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (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 sensorineural 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. §§ 1110, 1111, 1131 (presumption of soundness) is available for the Veteran for his initial period of active duty service, but not any period of ACDUTRA or INACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010).

Any individual who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA, and who is disabled from an injury incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA, shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be.  VA will determine whether such individual was so authorized or required to perform such duty and whether the individual was disabled from injury so incurred.  In making such determination, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for or ceased to perform such duty; the method of travel employed; the itinerary; the method in which the travel was performed; and the immediate cause of disability.  Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant.  38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). 

In accordance with 38 U.S.C.A. § 106, VA has the authority to determine whether a claimant was in active service, including ACDUTRA or INACDUTRA, at the time a claimed injury occurred.  VA regulations governing requirements for establishing service for VA benefits purposes require military service department verification of the appellant's service.  See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203.  "[O]nly official service department records can establish if and when an individual was serving on active duty, [ACDUTRA], or [INACDUTRA]."  Cahall v. Brown, 7 Vet. App. 232, 237 (1994).

The Veteran primarily contends that service connection is warranted for bilateral hearing loss as a result of exposure to loud noise that he experienced during his period of active duty service.  Specifically, he states that he was exposed to loud gunfire on many occasions, including while participating in combat during service in the Republic of Vietnam.  Personnel records document that the Veteran was awarded the Combat Action Ribbon during such service.  Exposure to loud noise during service is established by the Veteran's credible lay statements given his participation in combat with the enemy and that such noise exposure is consistent with the hardships and circumstances of his combat service.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

Post-service medical records show that the Veteran currently has bilateral hearing loss, including hearing impairment for VA purposes.  An April 2005 VA audiological examination reflects that the requirements of 38 C.F.R. § 3.385 were met for the left ear.  Although that examination report does not show that the requirements were met for the right ear, a subsequent VA examination in June 2010 shows that the requirements of 38 C.F.R. § 3.385 were also met for the right ear.  Private treatment records show that the Veteran has hearing impairment for VA purposes as well.

Regarding the question of whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure during active duty, the medical opinion evidence tends to show that there is no relationship.  Although a private treating physician linked the Veteran's current hearing loss to in-service noise exposure in April 2006 and February 2013 opinions, the June 2010 VA examiner gave an opinion that it is not likely that the Veteran's hearing loss is related to noise exposure during military service.  A detailed explanation, including in a May 2011 addendum, was provided by the VA examiner whereas no rationale was set forth by the private physician.

An alternative theory of entitlement is whether the Veteran became disabled from hearing loss incurred during a period of ACDUTRA.  In August 2007 and May 2010, the Board remanded the case, in part, to have the RO attempt to verify the Veteran's specific dates of ACDUTRA and INACDUTRA for his period of Naval Reserve service.  The specific dates could not be verified.  The January 2012 JMR instructed the Board to again request this information.  In view of the previous failed attempts, the Board finds that another remand to attempt to verify the Veteran's dates of ACDUTRA and INACDUTRA service would be futile as it appears that this information cannot be obtained.

As to the Veteran's Naval Reserve records that are available and associated with the claims file, the records contain periodic examinations from November 1985 and November 1992.  Although only the left ear is shown to be impaired for VA purposes in the November 1992 examination report, audiometric testing results show that both ears had decibel thresholds above 20 at certain Hertz during both examinations.  In November 1985, there was a decibel threshold of 25 at 500 and 3000 Hertz for the right ear, and a decibel threshold of 25 at 3000 and 4000 Hertz for the left ear.  Additionally, a diagnosis of high frequency hearing loss was made at that time.  In November 1992, there was a decibel threshold of 25 at 4000 Hertz for the right ear and decibel thresholds of 30 and 50 at 3000 and 4000 Hertz respectively for the left ear.

Based on the threshold readings from the November 1985 and November 1992 examinations, the Veteran had at least some degree of hearing loss as threshold levels were above normal hearing of 20 decibels.  See Hensley, 5 Vet. App. at 159; 38 C.F.R. § 3.385.  The requirements for impaired hearing for VA purposes were not shown in all instances during these examinations, but the requirements are necessary only to show a current disability.  As detailed previously, the Veteran currently has impaired hearing for VA purposes under 38 C.F.R. § 3.385.

The question remains whether the November 1985 and November 1992 examinations were conducted during a period of ACDUTRA.  The November 1985 examination report is labeled an annual examination while the November 1992 examination report is labeled a quadrennial physical examination.  There is no express indication that the examinations were conducted during a period of ACDUTRA.  Additionally, an incomplete record of Reserve service indicates that the Veteran may not have had ACDUTRA service in 1985.  Nevertheless, as noted previously, the specific dates of the Veteran's ACDUTRA service could not be verified.  When viewing the evidence in the light most favorable to the Veteran, the Board will assume that he was serving during a period of ACDUTRA at the time of the two examinations.  In consideration of the evidence of record and when resolving reasonable doubt in favor of the Veteran, the Board finds that the onset of the Veteran's bilateral hearing loss was as likely as not during a period of ACDUTRA.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Because service connection is warranted for a disabling disease incurred during ACDUTRA, the Board concludes that service connection is warranted for bilateral hearing loss.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs