Citation Nr: 1323741	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  09-42 054	)	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 disability.  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and L.B.


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel



INTRODUCTION

The Veteran had active military service from September 1967 to June 1969.  He had subsequent service in the Army National Guard of Arkansas, which included multiple periods of active duty for training (ACDUTRA) between November 1981 to July 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock Arkansas.

This matter was previously before the Board in February 2011, when it was remanded for further development.  The Board's prior remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below.  The Veteran's claim has returned to the Board.

Additional evidence subsequent to the most recent supplemental statement of the case (SSOC) has been received by VA; however, in light of the disposition granting the benefit sought in full, a remand for RO consideration and issuance of another SSOC is not warranted.  See 38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  Bilateral hearing loss was demonstrated on examination for entrance to active military service, which began in September 1967.

2.  The Veteran's bilateral hearing loss was permanently worsened beyond its natural progression during ACDUTRA.




CONCLUSION OF LAW

The Veteran has bilateral hearing loss disability which was aggravated by his ACDUTRA service.  38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.102, 3.306, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012).  In this decision, the Board grants service connection for bilateral hearing loss disability.  This represents a complete grant of the benefit sought on appeal for this issue.  Thus, any deficiency in VA's compliance with its duties to notify and assist is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.

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 (West 2002); 38 C.F.R. § 3.303 (2012).  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty.  38 U.S.C.A. § 101(24)(B) (West 2002); 38 C.F.R. § 3.6 (2012).  

In this case, the Veteran satisfies the existence of the present disability standard for his bilateral hearing loss claim.  In March 2011, the Veteran underwent a VA audiological examination in connection with the claim which showed bilateral hearing loss "disability" for VA purposes under 38 C.F.R. § 3.385 (2012).  Thus, the Veteran has present bilateral hearing loss disability.  

In February 2011, the Board determined that the Veteran had bilateral hearing loss that pre-existed service.  This finding was based on the Veteran's July 1967 induction examination, which shows auditory thresholds above normal levels for the left ear and the right ear when converted from ASA (American Standards Associates) standards to ISO (International Standards Organization) standards as the service department record which predated October 31, 1967 is presumed to have utilized ASA standards.  Hensely v. Brown, 5 Vet. App. 157 (1993).  Thus, the Veteran had bilateral hearing loss that preexisted service.  

As to the next question of possible in-service aggravation during a period of ACDUTRA, the evidence must show (at least when reasonable doubt is resolved in the Veteran's favor) that the condition both increased in severity during service and that it was beyond the natural progress of the disability.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).  See Smith v. Shinseki, 24 Vet. App. 40, 48 (2010) ("[I]t is clear that the application of section 101(24)(B) requires direct evidence both that a worsening of the condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training.").
In the March 2012 medical opinion, the VA examiner states that the Vetean's hearing loss did worsen during the Veteran's Reserve duty.  Although the examiner inaccurately stated that the Veteran's hearing loss began after active duty service, the Board finds that the probative value of her clinical opinion is that the Veteran's hearing loss worsened during ACDUTRA.  The opinion is persuasive as it is in accord with the other medical evidence of record and the Veteran's consistent statements that his hearing loss worsened.  Thus, the Board finds that the Veteran's pre-existing bilateral hearing loss was permanently worsened beyond its natural progression by in-service injury during ACDUTRA. 

At the least, this evidence raises reasonable doubt as to whether the Veteran's bilateral hearing loss was aggravated during a period of ACDUTRA.  When resolving the benefit of the doubt in the Veteran's favor, the Board finds that the pre-existing bilateral hearing loss was aggravated by such service.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  Thus, the Board concludes that service connection for bilateral hearing loss disability is warranted.



ORDER

Entitlement for service connection for bilateral hearing loss disability, as a preexisting disability aggravated by ACDUTRA service, is granted.


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs