Citation Nr: 1317693 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-39 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from June 24 to November 24, 1981, in addition to active duty from October 2003 to April 2005, and from October 2007 to March 2009. Additionally the Veteran participated in multiple periods of short-term ACDUTRA dates as well as inactive duty for training (INACDUTRA). The Veteran was ultimately discharged from the United States Army National Guard and assigned to the Retired Reserves on February 28, 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. When this case was before the Board in April 2012 and November 2012, it was remanded for additional development. The case has since been returned to the Board for further appellate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND While the Board regrets further delay, after review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to service connection for bilateral hearing loss. The Veteran contends that his current hearing loss disability is the result of acoustic trauma suffered during his various periods of active duty and ACDUTRA while serving in the Arkansas National Guard. Initially, the Board notes that following the previous remand, additional specific dates of ACDUTRA and INACDUTRA were obtained. In addition to the previously noted periods of active duty from October 2003 to April 2005 and from October 2007 to March 2009, as well as a period of ACDUTRA from June 24 to November 24, 1981, it was determined that the Veteran had ACDUTRA service from June 1, 2009, to June 13, 2009, and from June 11, 2010, to June 26, 2010. It was also determined that the Veteran had additional weekend drills that were determined to be ACDUTRA on a more or less monthly basis from March 2009 to October 2009, and from April 2010 to September 2010. Under VA law, service connection is granted for current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service or, if a pre-existing condition, for aggravation of the condition during or by the service beyond the condition's natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.306 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training 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 training 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) (West 2002); 38 C.F.R. § 3.6(a) (2012); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty is defined as full-time duty in the Armed Forces, other than active duty for training. See 38 U.S.C.A. § 101(21)(A) (West 2002). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A) (West 2002); 38 C.F.R. § 3.6(c) (2012). The definition also means, in the case of members of the Army National Guard or Air National Guard of any state, full-time duty under section 316, 502, 503, 504, or 505 of title 32 U.S. Code. 38 U.S.C.A. § 101(22)(C). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. Certain diseases, including hearing loss, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD, and there equally are no presumptions of soundness and aggravation concerning claims premised on ACDUTRA and INACDUTRA service. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). The Board notes that the Veteran was afforded a VA examination in May 2012 with regard to his claim for service connection for hearing loss. The examiner determined that the Veteran's hearing loss was first identified in the left ear on the March 3, 1989, audiogram and in the right ear on the April 6, 2003, audiogram. As such, the examiner determined that the Veteran's hearing loss pre-existed various periods of his active duty and ACDUTRA service. The examiner determined that the Veteran's hearing loss was not the result of an event in military service and that it was not aggravated during any period of service. Unfortunately, the examiner failed to comment specifically on the Veteran's assertions that he was exposed to noise from mortar attacks, including an April 2004 incident in which he lost hearing for around two weeks following a mirage of mortar attacks within a 15 minute time period, as well as a mortar blast which knocked him from a second story balcony to the ground. The Veteran also reported that he used hearing protection while on missions, but not on base. He further reported some post-military recreational noise exposure from lawn mowers, weed eaters, and chainsaws, all with hearing protection. The examiner failed to specifically address any of these contentions in his etiological opinion. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Such is the case here. Although the Veteran's history was noted in the May 2012 examination report, in rendering the opinion, the VA examiner did not address the Veteran's reported in-service symptoms or his report of ongoing symptoms thereafter. As such, this opinion is inadequate, and a remand for a new examination is necessary prior to deciding this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so Board's evaluation of the claimed disability is a fully informed one); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The RO/AMC should request that the Veteran provide a description of the extent of noise exposure during his various periods of service. While his hearing loss may have pre-existed many of his various periods of service, the Veteran should provided information regarding the degree to which his subsequent various periods of service aggravated his hearing loss. The Veteran should provide a greater detail as to the specific incidents of service and noise exposure that aggravated his hearing loss. The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran, as a lay person, can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With regard to hearing loss, the Board notes that the Veteran is competent to attest to hearing problems. Given the Veteran's multiple periods of active, ACDUTRA, and INACDUTRA service that occurred almost monthly for over 30 years, his contentions regarding in-service noise exposure that aggravated his hearing loss, should be specifically addressed. In addition, as there are now additional dates of ACDUTRA and INACDUTRA to consider, an addendum opinion addressing whether any current hearing loss is related to or aggravated by any incident of service, to include addressing the Veteran's specific contentions regarding in-service noise exposure, is needed to have sufficient medical evidence of record to decide the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a letter requesting that the Veteran provide more specific detail with regard to his incidents of noise exposure during his various periods of service. Please allow an appropriate amount of time for a response. 2. The Veteran should be afforded an addendum opinion to determine the etiology of the Veteran's hearing loss. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not the Veteran's current hearing loss is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to an incident during his military service. The examiner should also address whether the Veteran's pre-existing hearing loss was aggravated during any period of active duty, ACDUTRA, or INACDUTRA. The examiner should specifically address any contentions by the Veteran regarding specific incidents of noise exposure while in service. The examiner should provide a thorough rationale for any conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. If the physician is not available, an examination is authorized by another physician with expertise in audiology for the purpose of examining the Veteran and opinion as to the etiology of the Veteran's current hearing loss. 3. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).