Citation Nr: 1332688 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-04 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1964. He also had service in the Army Reserve and in the Army National Guard of New Mexico. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the Albuquerque, New Mexico Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO denied service connection for bilateral hearing loss. In June 2011 the Board remanded the case to the RO, via the VA Appeals Management Center (AMC), to provide relevant notice to the Veteran and develop additional evidence. Actions have been taken in response to the remand directives. The Board finds that the record now supports a grant of the Veteran's claim. As compliance with the remand directives was sufficient to support a grant of the benefit sought, the Veteran will not be prejudiced by the Board proceeding with review, and further remand would not be useful or appropriate. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. In a statement submitted in 2011 the Veteran raised the issue of service connection for tinnitus, which he asserted arose during National Guard service and continued thereafter. Thus, the issue of service connection for tinnitus has been raised by the record (it appears), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action (if needed). FINDING OF FACT Bilateral hearing loss developed as a result of noise exposure during service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran essentially contends that noise exposure during his 1962 to 1964 active duty, and/or during periods of Reserve and National Guard active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the 1960s to 1990s, caused his current bilateral hearing loss. The Veteran contends that he was exposed to noise during service and that his hearing loss and tinnitus began during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including neurological disorders such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013) Reserve service and National Guard service generally include periods of active duty or training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This generally refers to the two weeks of annual training that each National Guardsman must perform each year, or, in some cases, an initial period of training. For purposes of eligibility for service connection and disability compensation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2013). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). Service connection for hearing loss is regulated at 38 C.F.R. § 3.385, which provides that: 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, 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Veteran reports that during his 1962 to 1964 period of active service he was exposed to noise from helicopter engines. The discharge document from that period of service shows that his duties were as a helicopter repairman, which the Board would very much concede would expose the Veteran to very loud noise. The Veteran served in the National Guard from 1974 to 1994. He reports that during his National Guard service he was exposed to noise from track vehicles and airplanes. His National Guard records show that he served as an equipment and airplane repairman, with more noise exposure. The Veteran has stated that hearing protection was only available some of the time. In the Veteran's 1962 to 1964 period of active service his hearing was tested at entrance to service and at separation from service. The thresholds on the entrance and separation examinations did not meet the definition of a disabling hearing loss under 38 C.F.R. § 3.385. A comparison of the entrance and separation examinations, however, shows a shift in hearing thresholds, with higher thresholds (relatively reduced hearing capacity) in the separation examination. Reports of hearing testing performed by a private employer in 1997 to 2006 establish that during that period the Veteran had bilateral hearing loss that was a disability for VA purposes. In private hearing testing in 2006 the Veteran reported a history of occupational noise exposure, specifically, aviation repair work, in the military. He stated that his hearing had been decreasing gradually over the years. He reported experiencing increasing difficulty hearing women's voices and voices over the telephone and understanding speech when background noise is present. On VA hearing testing in May 2006, September 2006, and April 2012, the Veteran had bilateral sensorineural hearing loss that meets the VA definition of disability. The record shows acoustic trauma in service. The Veteran has stated that he was exposed to acoustic trauma by working in close proximity to helicopters and airplanes. He is competent to report the noise exposure he experienced. The history he reports is consistent with his duty history as shown by service records. The Board finds that his statements about noise exposure in service are credible. The Board accepts that the Veteran was exposed to significant noise during his 1962 to 1964 period of active service, and notes that his hearing worsened during that service period. His hearing worsened further after that service period, while he had Reserve and National Guard service with periods of duty for training that included further exposure to noise in his equipment and vehicle repair duties. While the VA examination in this case provides some evidence against this claim, the Board gives the Veteran the benfit-of-the-doubt: the evidence reasonably supports a relationship between high noise exposure in service and the Veteran's current bilateral hearing loss. The Board grants service connection. The Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss VA's duties to notify or assist the Veteran in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs