Citation Nr: 1337000 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-06 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The appellant served with the Army National Guard from November 1969 to November 1975, with a period of active duty for training (ACDUTRA) from February 1970 to June 1970, and subsequent two-week periods of ACDUTRA each year until his November 1975 discharge. He does not have any periods of active duty (AD) service or on inactive duty training (INACDUTRA) that are at issue. This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for his claim, the appellant testified at a hearing in August 2011 before the undersigned Veterans Law Judge of the Board at the Board's offices in Washington, DC (Central Office (CO) hearing). A transcript of the proceeding is in the claims file. FINDINGS OF FACT 1. The appellant's pre-existing left ear hearing loss disability was aggravated by hazardous noise exposure in the line of duty beyond its natural progression. 2. His right ear hearing loss was caused by the hazardous noise exposure in the line of duty. CONCLUSION OF LAW His bilateral (left and right ear) hearing loss disability was incurred in or aggravated by his service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Due Process Because the appellant's service connection claim for a bilateral hearing loss disability is being granted in ful1, there is no need to discuss whether there has been compliance with VA's duty-to-notify-and-assist obligations. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (observing that an error that does not affect the outcome of a case is not prejudicial); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also 38 C.F.R. §§ 3.103(c); 3.159 (2013). II. Analysis The appellant claims entitlement to service connection for a bilateral hearing loss disability incurred or aggravated in the line of duty during his periods of ACDUTRA. For the following reasons and bases, the Board finds that service connection is warranted. As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status"). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013). The term "active military, naval, or air service" includes: (1) AD; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2013). The term ACDUTRA includes, among other things, certain full time duty in the Army National Guard. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Thus, in order for the appellant to establish veteran status with respect to his National Guard service and therefore eligibility for service connection, the record must establish that he was disabled during a period of ACDUTRA due to a disease or an injury incurred or aggravated in the line of duty, or that he was disabled from an injury incurred or aggravated during a period of INACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). That said, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection benefits generally requires evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Unless and until veteran status is established for any period of ACDUTRA or INACDUTRA, the presumptions of soundness and aggravation, and the presumptions of service connection accorded certain diseases do not apply. See Bowers, 26 Vet. App. at 206-07; Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that the presumption of aggravation does not apply to periods of ACDUTRA); Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to claimants whose claims are based only on a period of ACDUTRA); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status (citing Biggins, 1 Vet. App. at 478)); see also 38 U.S.C.A. §§ 1111, 1112-1137, 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306, 3.307, 3.309 (2013). Impaired hearing is defined as a ratable disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. The Veteran need not have met these standards while in service, however, or even within the one-year grace period following the conclusion of his service allowing for the presumption for AD service that sensorineural hearing loss - as an organic disease of the nervous system - was incurred during his service if manifested to the required minimum compensable degree of at least 10-percent disabling. But he must meet these § 3.385 requirements currently or have at some point since the filing of his claim to have a ratable hearing loss disability, irrespective of any potential relationship between the disability and his service. See Hensley v. Brown, 5 Vet. App. 155, 157, 159 (1993). The appellant's November 1969 induction examination report shows he had hearing loss in his left ear prior to his periods of ACDUTRA, as his puretone thresholds at 3000 and 4000 Hertz were 40 and 45 decibels for this ear, respectively. See id. Thus, service connection only may be established based on aggravation of this pre-existing left ear hearing loss during his service, meaning a chronic or permanent worsening of it during his service above and beyond its natural progression. If, as here, a pre-existing disability is noted upon entry into service, the claimant cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that case, however, § 1153 applies and the burden falls on him to establish aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Conversely, with regards to his right ear, the appellant's puretone thresholds exceeded 20 decibels at several frequencies at induction, but were not severe enough to be considered ratably disabling at the time. Although in Hensley the United States Court of Appeals for Veterans Claims (Court/CAVC) noted that puretone thresholds above 20 decibels indicate some degree of hearing loss, citing to Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988), this observation does not necessarily constitute precedent when determining whether there was a pre-existing hearing disorder at time of enlistment. Accordingly, the Board will not employ this definition against the appellant's claim in this context. A January 2011 VA examination report shows the appellant has a current ratable hearing loss disability based on audiological testing results. See 38 C.F.R. § 3.385. He argues that his hearing loss was caused or aggravated by hazardous noise exposure from artillery and small arms fire during training exercises. Hazardous noise exposure during his National Guard service is established. His service personnel records show he trained with an artillery unit, and that he received a citation for expertise with an M16 rifle. The records also show two-week periods of ACDUTRA every year from 1971 through 1975, in addition to the longer period of ACDUTRA in 1970. According to his testimony during his Board hearing and in supporting buddy statements submitted by witnesses who had served with him, he served as an Artillery Forward Observer and Battalion Sniper, among other capacities, and thus was in close proximity to noise from live artillery exercises. He also regularly practiced on the rifle range to retain proficiency as a sniper. During his VA compensation examination, he denied wearing hearing protection when exposed to that noise during his service. Although his DD Form 214 shows that his most recent military occupational specialty (MOS) was Supply Clerk, the witnesses clarified that he only performed that duty for a relatively short time, and indicated that most of his duties and responsibilities instead involved direct exposure to artillery and rifle noise. He himself also has acknowledged civilian noise exposure as a cabinet maker for three years and from occasional hunting, though he does not believe it was to the extent he had in service. In the January 2011 VA examination report, the examiner opined that the appellant's current hearing loss was at least as likely as not aggravated by military noise exposure due to the type and frequency of such exposure. The examiner observed the appellant's puretone thresholds at 3000 and 6000 Hertz were not recorded in the November 1974 periodic reserve examination report, which is the most recent audiological examination of record prior to his November 1975 discharge from the National Guard. The examiner stated that hearing deterioration at these thresholds would be expected due to noise, but as these results were not recorded, they could not be compared with the November 1969 induction examination report. However, the examiner observed that the left puretone threshold at 4000 Hertz remained consistent in both audiograms, while there was a decrease in the right threshold by 10 decibels at 4000 Hertz, which was considered within the test-retest reliability range. By contrast, the June 1970 separation audiogram for the appellant's initial period of ACDUTRA reflects 0's at all tested frequencies, which the examiner noted was inconsistent with the November 1969 and November 1974 audiograms. The examiner also observed that aging, acquired conditions, and recreational noise exposure likely also had contributed to the appellant's current hearing loss. Based on that VA examiner's findings and the evidence of hazardous noise exposure during the appellant's periods of ACDUTRA, and resolving all reasonable doubt in his favor, the Board finds that service connection is warranted for aggravation in the line of duty of his pre-existing left ear hearing loss, and for right ear hearing loss incurred in the line of duty. See 38 C.F.R. §§ 3.102, 3.303, 3.6; Shedden, 381 F.3d at 1166-67; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for a bilateral (left and right ear) hearing loss disability is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs