Citation Nr: 1334837 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-40 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for left ear hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1973 to March 1977. He also had subsequent National Guard service, which included numerous periods of active duty service and active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The weight of the evidence shows that the Veteran's left ear hearing loss was incurred while on active duty and/or ACDUTRA status. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for left ear 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 active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability resulting from disease or injury incurred during ACDUTRA or injuries suffered during inactive duty training (INACDUTRA) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The presumptions of soundness and aggravation do not apply to periods of active duty for training or inactive duty for training. See Biggins v. Derwinski, 1 Vet. App. 474, 477 (1991). The Veteran contends that his left ear hearing loss is the result of his more than thirty year exposure to loud noise on the flight line, inside the jets' cockpits, and within the cargo holds of military transport aircraft. The Veteran's DD-214 Forms confirm that he served as a tactical fighter pilot and additional personnel records submitted by the Veteran confirm an extensive flight history during his military career. The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. 38 C.F.R. § 3.385. In this case, the Veteran's service treatment records (STRs) show normal audiological testing upon entry to the military during testing performed in September 1972: Pure tone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left Ear 15 10 10 10 10 The September 1972 examiner also assigned a physical profile of H-1 on the PULHES profile. PULHES represents the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The Veteran underwent numerous audiological tests throughout his career, including active duty, ACDUTRA, and as a National Guardsman. This audiological testing included the following results: Pure tone Threshold Month/Year 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 10/1974 Left Ear 15 15 5 5 15 5/1983 Left Ear 10 10 10 10 30 11/1997 Left Ear 5 15 15 5 40 8/2000 Left Ear 5 10 10 40 35 9/2002 Left Ear 10 15 10 35 45 9/2006 Left Ear 10 15 10 40 35 While the record reflects some fluctuation, overall, his testing reveals progressive hearing loss in the left ear. Further, during routine examinations in August 2000, July 2004, August 2005, and September 2006 the Veteran's doctors noted his hearing loss and assigned an H-2 for his PULHES profile. In March 2008, the Veteran underwent a retirement examination. That examiner also noted hearing loss with military service. The Veteran was then afforded a VA examination in January 2009 in connection with his hearing loss claim. The examiner reviewed the Veteran's claims file and noted that he had had a normal audiogram early in his career and that high frequency hearing loss was documented. An audiogram at that examination showed the following results: Pure tone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left Ear 10 15 10 45 45 The examiner noted that the Veteran's speech recognition score for the left ear was 96 and diagnosed the Veteran with moderate sensorineural hearing loss in the left ear. She then opined that the Veteran's hearing loss was at least as likely as not due to his military noise exposure. In her rationale she explained that the Veteran's hearing loss was documented in his medical records and the relationship between hearing loss and noise exposure was well documented. In this case, the Veteran's January 2009 VA examination confirmed a current diagnosis of left ear hearing loss under VA law. The Veteran's flight history records document hundreds of sorties, approximately weekly flights from August 1990 through October 1999 - which are all ACDUTRA status, as well as additional ACDUTRA flight time over the years. The Veteran also had several additional periods of active duty service. During these periods of active duty and ACDUTRA service, the Veteran was exposed to loud noise; a fact included in his service treatment records, which report that the Veteran was "routinely noise exposed," had "steady noise exposure," as well as "impulse noise exposure." The Board finds that the evidence of record supports the Veteran's contentions that his noise exposure and left ear hearing loss occurred during active duty and/or ACDUTRA service. The January 2009 VA examiner opined that the Veteran's left ear hearing loss was at least as likely as not related to his noise exposure while in service. As such, the Board finds that service connection is warranted. ORDER Service connection for left ear hearing loss is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that the Veteran has a current diagnosis of a right knee disorder. Pain and arthritis of the knees is noted in the Veteran's March 2008 retirement examination; as such, a VA examination is required in this case. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While the Veteran was afforded a VA examination in February 2009 in connection with this claim, the Board finds that the examiner did not provide an opinion as to the etiology of the claimed right knee disorder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also notes that the Veteran's claims file was not sent to the examiner for review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all medical care providers who have treated him for his right knee disorder, including any private providers. After obtaining any necessary authorization from the Veteran, request all identified records. All reasonable attempts should be made to obtain any identified records, including any outstanding VA records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above development has been completed and all outstanding treatment records and other documents have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of the Veteran's claimed right knee disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should opine as to whether it is at least as likely as not that the Veteran's right knee disorder is related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs