Citation Nr: 1337061	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  12-27 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.  


ATTORNEY FOR THE BOARD

D. Havelka, Counsel










INTRODUCTION

The Veteran served on active duty from January 1968 to November 1971.  Subsequently, he served 30 years in the National Guard with various periods of active duty for training (ADT) and inactive duty training (IDT).  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  


FINDINGS OF FACT

1.  The Veteran experienced acoustic trauma during active duty service in Vietnam.  

2.  Service treatment records do not reveal any diagnosis of hearing loss or tinnitus during active duty service; the Veteran's hearing was normal on separation from active duty in 1971.  

3.  The Veteran has a current hearing loss disability which evidence shows was diagnosed in 1980.  

4.  The Veteran reports tinnitus beginning in approximately 2000.  

5.  Current hearing loss and tinnitus disorders are not the result of a disease or injury, including noise exposure, experienced during active duty service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303, 3.385 (2013).

2.  Tinnitus was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  

The Veteran has been provided the requisite notice with respect to his claims for service connection for a bilateral hearing loss and tinnitus in a letter dated November 2010, which was prior to the initial RO rating decision denying the benefits sought.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

VA has obtained available service treatment records; VA examination reports; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present testimony, written statements and evidence.  All known, identified, and available records relevant to the issues on appeal have been obtained and associated with the evidence of record and he has not contended otherwise.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran was afforded a VA audiology examination in conjunction with his claims for entitlement to service connection 

and the examination is adequate.  

The Veteran recently submitted a statement which indicated that he had been issued hearing aids from a VA medical facility.  These records would merely establish that the Veteran has a current hearing loss disability, a fact already confirmed by the VA examination already of record.  The Veteran did not indicate that these records in any way link the claimed hearing loss and tinnitus to his period of active duty service.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

II.  Veteran Status

A "veteran" is a person who served in active military, naval, or air service.  See 38 U.S.C.A. § 101(2) (West 2002).  Pursuant to 38 U.S.C.A. § 101(24), "'active military, naval, or air service' includes active duty, any period of [ADT] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty."  38 U.S.C.A. § 101(24).  Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ADT, or for an injury incurred during inactive duty training (IDT).  See also 38 C.F.R. § 3.6 (2013).  

The Veteran's discharge papers, DD 214, reveal that he had a period of active duty service from January 1968 to November 1971.  He served on active duty in the Army during this period of time.  The service personnel records reveal that he served in an engineering unit with a military occupational specialty (MOS) of an engineering equipment operator and repairman.  During active duty he served in Vietnam for a period of 1 year and 7 months.  

After the Veteran separated from active duty, he ultimately enlisted in the National Guard.  Service personnel records reveal that he served in the National Guard from August 1974 to January 1975.  Subsequently, he enlisted again in the National Guard in April 1980 and remained in the National Guard until he retired in February 2008.  His retirement points statement indicates various periods of ADT and IDT during his 30 years of National Guard service dating from 1980 to 2008. 

The evidence does not show that he was disabled from a disease or injury incurred in or aggravated in line of duty during any period of ADT or IDT during his three decade career in the National Guard.  Accordingly, he is not a "veteran" with respect to his three decade period of National Guard service from 1980 to 2008 for the purposes of the claimed disorders within the criteria of the controlling legal authority.  38 U.S.C.A. § 101; 38 C.F.R. § 3.6.  

To the extent that he is not a "veteran" with respect to the period of time from 1980 to 2008, he is therefore not entitled to any statutory or regulatory presumptions which arise therefrom.  He is not entitled to the presumption of soundness, nor is he entitled to the presumption of aggravation of a preexisting injury or disease with respect to his period of National Guard service.  38 U.S.C.A. §§ 1111, 1153 (West 2002); 38.C.F.R. §§ 3.304, 3.306 (2013); see also, Smith v. Shinseki, Vet. App. 474, 478 (1991); Bowers v. Shinseki, 26 Vet. App. 201 (2013).  

III.  Service Connection

Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a current "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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."  Id.   

In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999).

The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus.  In his October 2011 notice of disagreement, the Veteran stated that he was a mechanic who worked on engineering equipment and that he was exposed to loud noise from the bulldozers without hearing protection.  He also stated he shot M-14 rifles which were very loud.  

In his September 2012 substantive appeal the Veteran stated that he worked "for the Government at the CSMS shop in Smyrna, TN and was around constant noise and big trucks and this caused my hearing loss & tinnitus.  I was in the National Guard at the time."  This statement indicates noise exposure during the period of time that the Veteran was a member of the National Guard, which is not active military service.  Moreover, this statement indicates that the Veteran also was working in a civilian capacity when much of the claimed noise exposure occurred.  

Review of the Veteran's active duty service treatment records does not reveal any complaint, diagnosis, or treatment for hearing loss or tinnitus during active duty service.  Audiometric testing was conducted on entry examination in January 1968 and separation examination in July 1971; in each case the Veteran's hearing was normal and the Veteran did not report any hearing loss on the accompanying reports of medical history.  

There is no medical evidence for the period of time from the Veteran's separation from active duty until his enlistment in the National Guard in 1980.  An April 1980 National Guard entrance examination included an audiological evaluation, which revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
5
5
25
LEFT
5
5
15
25
35

While these findings do not reveal a hearing loss disability as defined by VA at 38 C.F.R. § 3.385, the VA examiner commented that the findings were normal for the right ear and showed mild to moderate hearing loss in the 4000 Hertz to 6000 Hertz range.  

Service treatment records for the Veteran's period of National Guard service reveal periodic audiology examinations were conducted throughout the entire period of time from 1980 to 2008.  The findings of these audiology examinations revealed increasing levels hearing loss bilaterally over the years.  The severity of his hearing loss increased to the level that he was put on physical profile in August 2008.  However, these service treatment records do not indicate a cause of the hearing loss; there is no opinion in the National Guard records linking the hearing loss to noise exposure during the Veteran's period of active duty, or to any discrete period of ADT or IDT.  

In March 2011, a VA audiology examination of the Veteran was conducted.  The examiner reviewed the evidence of record noting that the Veteran hearing was normal on entry to active duty service in 1968 and normal on separation from active duty service in 1971.  The Veteran reported noise exposure during active duty.  The examiner noted a positive history of military noise exposure and post-service occupational noise exposure from employment at General Electric.  The examiner also noted the findings of the periodic National Guard audiology examinations dating from 1980 until 2008 which revealed hearing loss at increasing levels over the years.  The Veteran reported symptoms of tinnitus which began 10 to 12 years earlier.  Audiological evaluation was conducted and revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
55
70
LEFT
15
30
50
70
80

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 82 percent in the left ear.  These findings reveal a current hearing loss disability.  See 38 C.F.R. § 3.385.

The examiner stated :

Regarding the hearing loss:  Evidence in the [service medical records] does indicate that the Veteran has hearing loss that began as early as 1980.  However, this was after he separated from active duty.  His enlistment and ETS physicals indicated that his hearing was [within normal limits].  Therefore, it would seem less likely as not that his hearing loss is cause by or a result of his Active Duty noise exposure.

Regarding the tinnitus:  the Veteran reports that the tinnitus did not begin until 10-12 years ago.  This was 40 years after he separated from active duty.  Therefore, it would seem less likely as not that his tinnitus is caused by or as result of his Active Duty military noise exposure.  

The medical evidence shows diagnoses of current hearing loss and tinnitus disorders.  However, there is no evidence of hearing loss or tinnitus during active duty service.  There is no competent lay statements or medical opinions linking either of the claimed disabilities to active duty service, to include as due to noise exposure during active duty.  The evidence reveals that Veteran entered National Guard service in 1980 and that he with a pre-existing hearing impairment, and National Guard records reveal that hearing loss increased over the period of his National Guard Service from 1980 to 2008.  However, as he is not a "veteran" with respect to this period of service, the presumption of aggravation is not for application.  38 U.S.C.A. § 1153.  

Accordingly, the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus; the benefit-of-the-doubt rule does not apply and service connection is not warranted.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs