Citation Nr: 1337358 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-09 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from May 1990 to September 1990 and from June 2003 to July 2003. He also had additional service in the Air Force Reserves and the Air National Guard. Such included a period of active duty for training (ACDUTRA) in June 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO denied service connection for bilateral hearing loss. The Veteran appealed that decision, and the case was referred to the Board for appellate review. In a May 2012 decision, the Board denied entitlement to service connection for right ear hearing loss and Remanded the portion of the claim pertaining to left ear hearing loss. The Board most recently Remanded the matter in April 2013 for further development. In July 2013, the Board requested a specialist medical opinion from an otolaryngologist (ear, nose and throat specialist (ENT)) from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). An ENT opinion was obtained in August 2013. A copy of the opinion has been associated with the Veteran's physical claims files. The Board provided a copy of the ENT's opinion to the Veteran, as well as his representative in August 2013. In an October 2013 written argument to the Board, the Veteran's representative indicated that he had reviewed the VHA opinion and provided argument as to the merits of the claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's current left ear hearing loss disability had its onset during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103a, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board's decision to grant the Veteran's service-connection claim for a left ear hearing loss disability is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. II. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303(a) (2013). Under the law, active service includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). In other words, service connection is available for injuries and/or diseases incurred during active duty or active duty for training but (except for the exceptions listed in this paragraph) only for injuries, and not diseases, sustained on inactive duty for training. Brooks v. Brown, 5 Vet. App. 484 (1994). Active duty for training is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2013). Inactive duty for training is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any state (other than full- time duty). 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2013). Annual training is an example of active duty for training while weekend drills are inactive duty. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Merits Analysis The Board finds that the evidence of record supports a finding that the Veteran's left ear hearing loss disability for VA compensation purposes had its onset during a period of ACDUTRA. Service treatment records include, but are not limited to, a September 1989 Reserve enlistment examination report. An audiogram performed at that time reflects that the Veteran did not have hearing loss for VA purposes. On June 17, 1997, while on active duty for training, the Veteran was seen for episodic vertigo. (Service personnel records verify that the Veteran was on annual tour ACDUTRA on June 17, 1997). At that time, the examining clinician noted that the Veteran had experienced a similar syncopal episode with an ear infection one year previously. On an accompanying Report of Medical History, the Veteran reported, in part, that he had had dizziness. However, a July 1997 Periodic Non-Flying examination report contained audiogram findings that were normal in the left ear. On an accompanying Report of Medical History, the Veteran denied having had ear trouble. A May 2002 periodic service medical examination report, reflects that the Veteran had elevated auditory thresholds in the left ear of 35 at 500 and 1000 Hertz and 25 and 20 at 2000 and 3000 Hertz, respectively. A September 2002 private audiogram also reflects that the Veteran had elevated auditory thresholds of 30 and 25 at 500 and 1000 Hertz, respectively. See September 2002 audiogram, performed by Albany Ear, Nose, Throat, Sinus and Allergy Clinic. Post-service medical evidence of record reflects that the Veteran has a left ear hearing loss disability for VA compensation purposes. An April 2013 VA examination report documents audiogram findings of 55 and 40 at 500 and 2000 Hertz, respectively. Thus, Hickson element number one (1), evidence of a current disability, has been met. With regards to Hickson element number two (2), evidence of in-service disease or injury, the above-cited service treatment records reflects that the Veteran received treatment for vertigo during a period of active duty for training and after that time, he had elevated auditory thresholds, as noted above. Thus, Hickson element number two (2), evidence of a in-service disease or injury, has been met. Concerning Hickson element number three (3), nexus between the Veteran's current left ear hearing loss disability and his 1997 period of ACDUTRA, there is one opinion that the Board deems adequate. That is the August 2013 VHA ENT opinion. Previous opinions obtained by VA either provided conflicting conclusions or insufficient medical rationale. Indeed, such triggered the Board's request for the VHA opinion. The VA ENT opined, in pertinent part, that it was at least as likely as not that the Veteran's left ear hearing loss was incurred during the 1997 period of service. The VA ENT supported her opinion by stated that the Veteran's records in 1997 reflected symptoms of vertigo, which were consistent with an inner ear condition. She further related that the subsequent findings of hearing loss in the left ear from that date forward tended to focus the onset [of the Veteran's left ear hearing loss] at around that point in time. See August 2013 VHA opinion. Overall, the totality of the evidence supports a finding that the Veteran has been diagnosed as having a left ear hearing loss disability that had its initially onset during a period of ACDUTRA or was the direct result of an episode of vertigo (an inner ear condition) while on ACDUTRA. The VHA opinion is consistent with the Veteran's service treatment records, and was provided in direct response to the Board's request for an opinion as to whether the Veteran's left ear hearing loss disability was etiologically related to the June 1997 episode of vertigo. The evidence is supportive of the claim; thus, service connection for left ear hearing loss disability is granted. ORDER Service connection for a left ear hearing loss disability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs