Citation Nr: 1323722 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 11-03 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to October 1968. Subsequently, he had service with the Oregon Air National Guard with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 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 Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. Remand is required to obtain records and an adequate etiological opinion. The Veteran was afforded a VA audiology examination in March 2009. Hearing loss in both ears was diagnosed. See 38 C.F.R. § 3.385 (2012). The Veteran reported constant tinnitus. The Veteran further reported noise exposure during active service as a vehicle repair specialist in the Air Force, an onset of hearing problems three to four years prior to the examination, and an onset of tinnitus starting a couple of years prior to the examination. The examiner opined that the bilateral hearing loss and tinnitus were not caused by noise exposure in active service. He observed that the Veteran's 1965 enlistment and 1968 separation examinations indicate normal bilateral hearing. The examiner noted the 1968 separation examination appeared to be flawed, however, the Veteran's Oregon Air National Guard 1989 enlistment examination indicated normal bilateral hearing. Thus, the examiner reasoned that the Veteran's service treatment records (STRs) did not support his claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2009 VA examination report is inadequate as the opinion is based on a factual inaccuracy and does not address whether the hearing loss and tinnitus were incurred or aggravated during periods of service in ACDUTRA or INACDUTRA. In regard to the factual inaccuracy, the examiner reasoned that the Veteran's STRs do not support his claim that his hearing loss and tinnitus are related to his noise exposure in service, because the records are consistent with the Veteran's statements that his hearing loss began three to four years prior to the examination and his tinnitus began a couple of years prior to the examination. This does not appear to be true. The Veteran's STRs show normal bilateral hearing at enlistment in February 1965 and at separation in October 1968. Subsequently, the Veteran enlisted in the Oregon Air National Guard and 1985 and 1989 examinations also show normal bilateral hearing. However, a May 1993 audiology examination reveals pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 20 45 40 LEFT 5 0 0 10 15 30 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The 1993 examination thus reflects right ear hearing loss for VA purposes and evidence of hearing loss in his left ear. Therefore, the examiner's opinion that the Veteran's hearing loss and tinnitus started three to four years prior to the 2009 examination is flawed. The Board finds that an addendum opinion is necessary to determine the etiology of the Veteran's hearing loss and tinnitus in light of the Veteran's May 1993 National Guard examination. In addition, the VA examiner did not address whether the Veteran's hearing loss disability was incurred or aggravated during any period of ACDUTRA or INACDUTRA in the Oregon Air National Guard. Service connection may be granted for a disability resulting from a personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 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, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(210), (24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, with respect to the Veteran's Air 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). However, these 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). As the March 2009 VA examiner did not provide an opinion explicitly addressing whether the Veteran's hearing loss and tinnitus was incurred or aggravated in the line of duty during periods of ACDUTRA or INACDUTRA, the case must be remanded for such an opinion. Finally, the Board notes that there is some uncertainty in the record with regard to the dates of the Veteran's National Guard service, including periods of ACDUTRA and INACDUTRA periods. Those dates must be determined prior to determining whether a disability was incurred or aggravated in line of duty in the active military service. See, e.g., 38 C.F.R. §§ 3.1 (b), (k), 3.6. Clarification must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Office of the Adjutant General of the Oregon National Guard, or any other federal records repository, to request any available service personnel records and/or service treatment records for the Veteran for the periods from 1983 to 1995. The dates of the Veteran's National Guard service, to include all periods of active duty, ACDUTRA, and INACDUTRA, should be verified. 2. After completion of the above, refer the claims file to the March 2009 VA examiner, or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any hearing loss and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, specifically the 1985, 1989, and 1993 National Guard examination reports and lay statements. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss and tinnitus are causally or etiologically related to a period of active duty from February 1965 to October 1968, including noise exposure during such service. The examiner must address the Veteran's lay statements regarding his exposure and lack of hearing protection during that time period. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral hearing loss and tinnitus are the result of injury or disease incurred during any period of ACDUTRA or an injury during a period of INACDUTRA in the Air National Guard. If the examiner finds that the Veteran had a hearing loss disability or tinnitus prior to a period of ACDUTRA or INACDUTRA, the examiner should then state whether such disorders are at least as likely as not (50 percent or greater probability) aggravated (permanently worsened beyond the natural progression of the disease) during a period of ACDUTRA or an injury was aggravated during a period of INACDUTRA. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. 3. After completing this action, the RO should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. MILLIKAN 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).