Citation Nr: 1311468 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 08-36 529 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The appellant served in the Army National Guard from October 1955 to October 1965 with eight two-week periods of active duty or active duty for training (ACDUTRA) from 1956 to 1963. He was transferred to the Inactive National Guard in January 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the RO. The appellant appeared at a hearing before a Decision Review Officer (DRO) at the RO in October 2010. In March 2013, the appellant testified at a hearing held at the RO before the undersigned Veterans Law Judge. Transcripts of both proceedings are of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the appellant's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues decided herein. 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). The issue of service connection for a back disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated bilateral hearing loss disability is shown as likely as not to be to the appellant's exposure to hazardous noise levels beginning during his periods of active duty for training in connection with his long service with the National Guard. 2. The currently demonstrated tinnitus is shown as likely as not to be to the appellant's exposure to hazardous noise levels beginning during his periods of active duty for training in connection with his long service with the National Guard. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the appellant, his bilateral hearing loss disability is due to disease or injury that was incurred in a period of active duty for training. 38 U.S.C.A. §§ 101, 1101, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.385 (2012). 2. By extending the benefit of the doubt to the appellant, his disability manifested by tinnitus is due to disease or injury that was incurred in a period of active duty for training. 38 U.S.C.A. §§ 101, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The appellant was provided all required VCAA notice in an October 2006 letter, prior to the initial adjudication of the claim in March 2007. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the appellant have been obtained. The appellant's written statements are of record. Neither the appellant nor his representative have identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the appellant was afforded an appropriate VA examination in connection with his claims. The Board finds that the examination was adequate, in that the exam was conducted by medical professional who reviewed the claims file, solicited history from the appellant, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that VA has complied with its duty to assist the appellant. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). VA law provides that active service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23)(C); 38 C.F.R. § 3.6(d). To establish basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a claimant must have been ordered into Federal service by the President of the United States pursuant to 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C); Allen v. Nicholson, 21 Vet. App. 54, 58 (2007). To establish a right to compensation for a present disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. As sensorineural hearing loss is an organic disease of the nervous system considered to be a chronic disease for VA purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods, however, generally do not apply to periods of ACDUTRA or INACDUTRA. See, e.g., Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010); Acciola v. Peake 22 Vet. App. 320, 324 (2008) (citing Biggins, 1 Vet. App. at 478). Accordingly, in this case, consideration of these provisions is not appropriate. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The appellant's primary contention is that his current bilateral hearing loss and tinnitus are attributable to noise exposure during his annual training periods with the National Guard. Specifically, he reports having significant noise exposure during these periods while working as a cook, or alternatively, when delivering shells as a truck driver. A review of the appellant's National Guard service records (NGB Form 23) shows that he had annual active duty or active duty for training (ACDUTRA) for a two-week period each summer beginning in either June or July from 1956 to 1963. He was transferred to the Inactive National Guard in January 1964. Based on this record, it appears that this service is consistent with the full-time duty, annual training requirement under 32 U.S.C.A. § 502 to establish basic eligibility for VA benefits. His military occupation specialties were cook (until 1958) and truck driver/basic field artillery thereafter. The service treatment records show that, during the October 1955 enlistment examination and October 1958 and October 1962 re-enlistment examinations, he denied having any history of ear trouble; on examination, his ears were found to be "normal." While audiogram results were noted as not required, whispered voice and soft voice testing at each time was found to be 15/15, bilaterally. A review of the post-service private treatment records shows that the appellant voiced his earliest complaints of intermittent tinnitus in October 2005 and hearing loss in May 2006 as part of the physical examinations with his private orthopedic provider for other disorders. In his August 2006 claim, the appellant stated that his hearing loss and tinnitus were due to active service. The section to indicate when the claimed disabilities began was left blank. In a January 2007 written submission, the appellant stated that he was exposed to constant fire missions of the artillery guns and small arms fire as part of combat readiness operations in the field, where he spent the majority of his time, without hearing protection. In an October 2007 written submission, the appellant stated that, while serving as a cook, he was exposed to acoustic trauma from gas explosions when he lit the burners in the kitchen that would affect his hearing for weeks. He also stated that he had to listen to the artillery fire all day long, as the kitchen was located next to the area where the artillery guns were located. The appellant was afforded a VA audiological examination in April 2008 and reported that he could not recall the date and circumstances of onset of his intermittent tinnitus due to the passage of time, nor the onset of his gradual bilateral hearing loss. He reported having exposure to noise during National Guard service while performing his duties as a cook (cooking in the building located near the range where the explosions occurred; gas burner explosion) and a truck driver, as well as civilian noise exposure working as a printer during that time period, and thereafter as a truck driver (20 years), and using a chainsaw and power lawn mower. All of these activities were reported as done without the use of hearing protection. On audiological examination, the pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 55 55 LEFT 20 15 25 55 55 Speech recognition was 94 percent in both ears. The examiner diagnosed normal 250 to 2000 Hertz, sloping to a moderate sensorineural hearing loss 3000 to 8000 Hertz, with normal middle ear functional, bilaterally, and acknowledged tinnitus as a subjective complaint with no objective measure to validate its presence or absence. The examiner opined that the appellant's hearing loss and tinnitus were less likely as not caused by or a result of military noise exposure. In so finding, the examiner noted consideration of the reported duties as a cook and truck driver for the National Guard service times, civilian work as a printer during the entire time the appellant was enlisted in the National Guard, and post-service work as a truck driver for 20 years without hearing protection. Based on these factors and the degree of loss obtained during the examination, with no documentation of unusual noise exposure while in service or evidence of active service during war time with associated noise exposure, the examiner found that the current bilateral hearing loss and tinnitus were less likely as not caused by noise exposure during National Guard service. A September 2010 private audiological evaluation report shows a finding of mild to moderate hearing loss, with a positive notation for noise exposure. The recommendation was for amplification. During the October 2010 hearing, the appellant testified that he was exposed to noise from the firing on the artillery range for approximately 2-3 days out of the two-week period of annual training. Specifically, he testified that he was sometimes near the field (about a block away, separated by a creek and some trees) to serve officers coffee, other times he served them in the kitchen; there was no set pattern for when they served in the field or kitchen. When asked to clarify how often he was exposed to that loud noise, he responded maybe two days of the two weeks, depending on when he was in the truck delivering the shells, then indicated three days of the two-week stay. When asked if the noise exposure was of this frequency for the eleven or so years he was in the National Guard, he replied in the affirmative that it was "somewhere in that area." He also reported that the civilian printer job did not expose him to loud noises, nor his later job as a pick-up truck driver. He also reported current intermittent tinnitus in the evenings. See DRO Hearing Transcript at 10-11, 14. During the March 2013 hearing, the appellant testified that he was exposed to noise from constant firing on the artillery range right on top of the kitchen he was working in (about a block away, where the officers would come then return up the hill to the field) without the use of hearing protection. See Board Hearing Tr. at 7-8. He later testified that the firing of weapons would begin after he served breakfast in the morning, with a round being fired about every 20 minutes, 18 miles away. See Board Hearing Tr. at 11. He indicated that his tinnitus started when he was working as a cook, and that his hearing loss probably started three years before he left the National Guard in 1965 because that was when "[he was] actually really involved with the heavy artillery and all." He indicated that he recalled having a feeling like cotton in his ears while in service. See Board Hearing Tr. at 7-9, 12. The appellant also reported that he thought he first sought treatment for his hearing loss and tinnitus in approximately 2007 when he was not eligible for VA treatment, and went thereafter to a private provider. He reported currently using hearing aids from his private provider, but was unable to recall any notations made in those treatment records about his hearing loss due to the passage of time. See Board Hearing Transcript at 8-10. Based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral hearing loss disability and tinnitus as likely as not are the result of the exposure to excessive or harmful noise level beginning in connection with the appellant's annual training with an artillery unit during ACDUTRA. The appellant does have a current hearing loss disability, as defined under 38 C.F.R. § 3.385. Furthermore, the Board acknowledges the appellant's claimed noise exposure for a portion of his yearly National Guard trainings, which would be consistent with duties as a truck driver delivering supplies to the training field. The appellant is competent to report as to the symptoms he experiences, such as hearing difficulty and tinnitus. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, 451 F.3d 1337. To the extent that he now asserts having hearing problems and tinnitus that began with his extensive noise exposure in his National Guard service, the Board finds his lay statements to be credible and sufficient to establish a continuity of symptomatology linking the onset of the claimed conditions to service. While the opinion of the April 2008 VA examiner weighs against the claim, the Board finds that this opinion to be of limited probative value to the extent that the examiner did not fully assess the appellant's assertions about his noise exposure during his extended service with the National Guard in light of that experienced thereafter. In regard to claimed tinnitus, the Board notes that this disorder is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 375 (2002). As such, the Board acknowledges the appellant's current assertions relating the onset of tinnitus to service and, as indicated, find them to be credible. In resolving all reasonable doubt in the appellant's favor, service connection for a bilateral hearing loss disability and tinnitus is warranted. Gilbert, 1 Vet. App. 53. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The Board finds that further development is necessary prior to final adjudication of the appellant's claim of service connection for a back disorder. The appellant's primary contention is that his current back disorder is attributable to an injury during a period of training in 1960, in which he fell from a truck while loading kitchen equipment. He reports having had chronic pain since that time. During the recent hearing, he testified that his claim was mainly related to his cervical spine. See Board Hearing Tr. at 2. A July 1960 injury report in the appellant's National Guard records shows that on June 27, 1960, he was on duty status when he sustained an injury. Specifically, as he was helping load stoves and other kitchen equipment into a 21/2 ton truck, he fell. He tried to break his fall by grabbing the canvas of the truck. The injury was noted as a broken middle finger on the left hand. A corresponding July 1960 line of duty memorandum shows that this injury was incurred in the line of duty while the appellant was on inactive duty training under 32 U.S.C.A. § 502. The appellant's NGB Form 23 shows that, on the date of the injury, the appellant was on active duty training. In any event, for the purposes of this discussion, the Board notes that this service was acknowledged as full-time federal duty under 32 U.S.C.A. § 502. A review of the post-service medical evidence of record shows that the appellant's earliest treatment for his back in 2004, to include cervical spinal surgery in June 2006. The record also shows that the appellant fell off of a roof in 2004. These private treatment records contain numerous diagnoses of lumbar, cervical, and thoracic spine disorders, including cervical spine stenosis and cervical cord myelomalacia (June 2006 operative report); thoracic strain and spondylosis, lumbar disc bulging (July 2006 treatment record); and thoracic and cervical radiculopathy and lumbar spondylosis (January 2008 treatment record). The appellant was afforded a VA examination in January 2009 when the examiner diagnosed minimal degenerative changes in the lumbar spine and polyneuropathy related to the cervical spine, noting the status post decompression of the cervical spine with anterior fusion. The examiner opined that the appellant's spine was not service connected. In so finding, the examiner noted that there was no evidence of a chronic disorder following the in-service event, and the appellant did not seek treatment until many years after service. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination and corresponding report must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Board finds that the January 2009 VA examination is inadequate. Specifically, the opinion is based primarily on the rationale of a lack of medical care, and it is unclear if the examiner fully addressed all of the appellant's current back diagnoses or his lay assertion of experiencing back problems since the injury. In addition, the opinion does not address the appellant's post-service fall from his roof in relation to his current symptomatology and diagnoses; this relevant factor could be an intercurrent cause of a claimed back disorder. In light of the above considerations, the Board finds that a complete examination and resulting medical opinion addressing the nature and etiology of any current back disorder is needed to have sufficient medical evidence to decide the appellant's claim. 38 C.F.R. § 3.159(c)(4) (VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim.). Accordingly, this remaining matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should have the appellant scheduled for a VA examination to determine the nature and likely etiology of the claimed back disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the appellant's service treatment records, post-service medical records, and statements. The examiner should identify any current back disorder. Then, for each disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that any current back disability is due to the injury or another event or incident of the appellant's active duty for training (ACDUTRA), including when he fell from a truck while loading kitchen equipment, or any other event or incident related to such service. The examiner is asked to specifically consider the existing diagnoses provided in the October 2006 letter from KSF Orthopaedic Center and the January 2008 treatment report from Crescent Neurology (Dr. F.I.). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) The supporting rationale for all opinions expressed must be provided. If the required opinion cannot be provided, the examiner should explain why the opinion cannot be provided. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs