Citation Nr: 1314072	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  10-48 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The appellant served on active duty for training (ACDUTRA) from August 1965 to December 1965 and on active duty from August 1985 to March 1989.  Between December 1965 and August 1985 he served various periods of ACDUTRA and inactive duty for training (INACDUTRA) in the North Carolina Army National Guard (NCANG).

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In his December 2010 substantive appeal, the Veteran requested a hearing by live videoconference before a Veterans Law Judge.  A hearing was scheduled for April 2012, but he failed to report.  As such, his hearing request is deemed withdrawn.  


FINDINGS OF FACT

1.  Resolving reasonable doubt in favor of the Veteran, the evidence shows that current left ear hearing loss was incurred in service.

2.  Resolving reasonable doubt in favor of the Veteran, the evidence shows that current right ear hearing loss was aggravated by service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, 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).

Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.304.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  ACDUTRA includes full-time duty in the Armed Forces performed by a member of the National Guard of any State under 32 U.S.C.A. §§ 315, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  INACDUTRA includes duty, other than full-time duty, performed by a member of the National Guard of any State under 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23)(A); 38 C.F.R. § 3.6(d). 

Thus, with respect to the Veteran's Army National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304.  Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process.  See Brooks v. Brown, 5 Vet. App. 484, 487 (1993).

For certain chronic disorders, including sensorineural hearing loss disability, an organic disease of the nervous system, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  Those presumptive regulations (38 C.F.R. §§ 3.307 and 3.309), as well as the presumptions of soundness and aggravation, attach independently to each period of service.  However, presumptive regulations do not apply to periods of ACDUTRA and INACDUTRA, even where the claimant had a prior period of active duty.  Smith v. Shinseki, 24 Vet. App. 40 (2010).

For 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, 4000 Hertz is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the above frequencies are 26 dB 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 dB; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran has been diagnosed with current bilateral hearing loss disability 
for VA adjudication purposes.  Private treatment records and the October 2009 VA examination provide five audiograms dated between December 2003 and December 2010, all of which show auditory thresholds that meet the criteria for hearing loss for VA purposes bilaterally, with the left ear consistently worse than the right ear.  The Board finds that the Veteran has current bilateral hearing loss disability for VA adjudication purposes.  

The remaining inquiry is whether the Veteran's hearing loss is related to his service.

Left ear

The service records include a June 1966 National Guard document which states that a separation physical done in December 1965 showed high frequency hearing loss (HFHL) in the left ear.  The Veteran was instructed to contact the nearest Army medical facility in June 1966 for a re-evaluation.  The December 1965 separation physical would have occurred at the conclusion of the Veteran's first period of ACDUTRA (August 1965 to December 1965), but the report of that examination is not in the claims file.  However, the Board accepts the June 1966 record as accurately describing the December 1965 discharge examination.

Accordingly, there is medical evidence that the Veteran had HFHL in the left ear in December 1965, during a period of ACDUTRA.  Moreover, the re-evaluation in June 1966 showed high tone hearing loss in the left ear, with an auditory threshold of 60 dB at 4000 Hertz.  This auditory threshold meets the criteria for hearing loss under 38 C.F.R. § 3.385.  Further, later service records include audiograms conducted in the 1970s that consistently show some level of hearing loss in the left ear.  Audiograms conducted in the 1980s and from 2003 to 2010 meet the criteria for hearing loss disability in the left ear.

The Court of Appeals for Veterans Claims has held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service, if evidence is received showing that a current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Based on the foregoing, and resolving doubt in favor of the Veteran, the Board finds that the medical evidence establishes a link between current disability and service.  Accordingly, the criteria to establish service connection for left ear hearing loss are met.

Right ear

The service treatment records (STRs) contain numerous audiograms.  Prior to June 1985, none of them show auditory thresholds that meet the criteria for right ear hearing loss for VA purposes.  A June 1985 National Guard record, however, shows puretone thresholds were as follows:



HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
30
30
30
LEFT
0
35
45
65
60

In the right ear, the auditory thresholds for at least three of the above frequencies were 26 dB or greater.  This satisfies the regulatory criteria for hearing loss disability in the right ear.  Accordingly, it is concluded right ear hearing loss existed prior to the Veteran's August 1985 to March 1989 period of active service.  

An audiogram in the service treatment records from this last period of active duty, dated November 1986, shows the following puretone thresholds:

HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
40
35
35
LEFT
10
55
40
65
60

Thus, this audiogram reveals that during this period of active duty, the right ear hearing loss increased in severity.  At every frequency, the right ear auditory threshold exceeded that measured in the June 1985 audiogram.  Moreover, audiograms dated from 2003 to 2010 show that the right ear hearing has continued to worsen.  Service connection may be granted for a disability resulting from disease aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Based on the foregoing, and resolving doubt in favor of the Veteran, the Board finds that the medical evidence establishes the Veteran's right ear hearing loss was aggravated by service.  Accordingly, the criteria to establish service connection for right ear hearing loss are met.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.

ORDER

Service connection for bilateral hearing loss is granted.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs