Citation Nr: 1337370 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-01 253 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The appellant had service with a Reserve unit, which included a verified period of active duty for training (ACDUTRA) from March 27 to July 24, 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Board notes that the instant matters were previously before it in August 2012, at which time they were remanded for further development. Upon completion of the requested development, the appellant's claims were readjudicated and denied via a May 2013 supplemental statement of the case. The case was returned to the Board that same month. FINDINGS OF FACT 1. The appellant's hearing loss existed prior to service and did not chronically worsen during a period of ACDUTRA. 2. The appellant does have tinnitus that is attributable to military service. CONCLUSIONS OF LAW 1. The appellant does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The appellant does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis In the instant case, the appellant seeks service connection for hearing loss and tinnitus, which he asserts began in 1968 and 1969, respectively. At the outset, the Board notes that generally, "[i]n order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed.Cir.2000). A "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training [(ACDUTRA)] during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training [(INACDUTRA)] during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2013); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). For purposes of achieving veteran status, ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes" and INACDUTRA is defined, in part, as "duty (other than full-time duty) prescribed for Reserves . . . by the Secretary concerned under section 206 of title 37 or any other provision of law." 38 U.S.C.A. § 101(22), (23) (West 2002); 38 C.F.R. § 3.6(c), (d). "The term 'Reserve' means a member of a reserve component of one of the Armed Forces." 38 U.S.C.A. § 101(26). The Board notes that veterans who serve on regular active duty are entitled to several presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service -- to assist them in substantiating their service connection claims. 38 U.S.C.A. §§ 1111, 1112, 1153 (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2013). However, the presumption of sound condition does not apply to an appellant whose claim is based on a period of ACDUTRA who has not previously established veteran status. Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). Moreover, "where a claim is based on a period of [ACDUTRA], the presumption of aggravation under [38 U.S.C.A.] § 1153 is not applicable." Id. at 48; see Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010). In that case, the burden falls on the claimant to show that his/her disability was aggravated during that period of service by establishing that any preexisting condition worsened in service and that such worsening was beyond the natural progression of the disease. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004); Donnellan, 24 Vet. App. at 174-76. The key initial question in this case is whether the appellant qualifies as a "veteran" for VA purposes and, thus, whether he is entitled to the presumptions of sound condition and aggravation. Here, the evidence shows that the appellant served as a member of a Reserve unit. He has a verified period of ACDUTRA from March 27 to July 24, 1967, and his service personnel records suggest several other periods of ACDUTRA between then and his separation in March 1972. There is no suggestion that the appellant served on active duty at any point during his military service, and it does not appear that the appellant is basing his claims on a period of INACDUTRA. Accordingly, to establish his status as a veteran, it must be shown that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. See Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing 38 U.S.C.A. §§ 101(2), (22), (24), 1110; Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (holding that an individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and to be entitled to disability compensation benefits). "In the absence of such evidence, the period of [ACDUTRA] would not qualify as 'active military, naval, or air service,' and the [appellant] would not achieve veteran status." Acciola, supra (quoting 38 U.S.C.A. § 101(24)). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the instant case, the Board finds that the appellant's hearing loss pre-existed his initial period of ACDUTRA from March 27 to July 24, 1967. Notably, the appellant's March 1966 entrance examination report reflects that the appellant entered his initial period of ACDUTRA with an identified bilateral hearing loss per audiological testing conducted as part of that examination. Specifically, the examination report reveals that the appellant's auditory thresholds at 4000 hertz were recorded to be 50 (55) in the right ear and 45 (50) in the left ear, which evidenced bilateral hearing loss for VA disability purposes. See 38 C.F.R. § 3.385 (2013) (impaired hearing will be considered a disability for VA purposes when, among other things, the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater). (The Board notes that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO) American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses above.) Defective hearing was also listed under the summary of defects and diagnoses and the appellant was given a profile of "2" for "Hearing and Ears" at that time. Accordingly, regardless of the fact that the appellant denied hearing loss on the accompanying report of medical history, the Board finds that it existed prior to ACDUTRA in March 1967. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Consequently, for the appellant to achieve veteran status and, in turn, be entitled to VA disability compensation, he must show that his pre-existing hearing loss was aggravated during a specified period of ACDUTRA. In the instant case, however, the Board finds that the appellant has failed to meet his burden to establish that his pre-existing hearing loss permanently increased in severity during a period of ACDUTRA. In that regard, the Board notes that audiometric testing conducted as part of a June 1967 medical examination recorded the appellant's auditory thresholds to be zero (0) decibels in all tested frequencies, which, even when converted to ISO-ANSI standards, fails to evidence impaired hearing. Audiometric testing data from February 1969, however, records the appellant's auditory thresholds at 4000 hertz to be 40, bilaterally, again evidencing hearing loss for VA purposes. The appellant was again given a profile of "2" for "Hearing and Ears" at that time. There is no indication in the appellant's service treatment or personnel records that additional audiometric testing was conducted, despite subsequent periods of annual ACDUTRA. Upon review of the appellant's service records, a VA examiner opined that the appellant's pre-existing hearing loss was not aggravated beyond its natural progression during service. The examiner noted the evidence of bilateral hearing loss in March 1966 and stated that the appellant presented with a very similar hearing loss at the time of the February 1969 examination. Upon consideration of the fact that the appellant's hearing was the same, if not better, in 1969 as it was in 1966, the examiner concluded that there was no evidence of aggravation. The Board notes that post-service private medical records contain a diagnosis of mild sloping to profound hearing loss and the clinician's opinion that portions of the high frequency hearing loss in each ear could be secondary to noise induced trauma in the past, especially since the appellant had noted exposure to acoustic trauma from small arms fire and possibly artillery fire while in service. Reviewing the private clinician's opinion, the VA examiner noted that that opinion was based not upon review of the claims folder, but only upon the appellant's current presentation. Notably, there is no indication that the private clinician reviewed the appellant's STRs prior to rendering his opinion. Given that the evidence of record fails to demonstrate a worsening of the appellant's hearing while he was serving, the Board finds that the private clinician's opinion is of no probative value, as it does not appear that that opinion was based on all relevant evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (failure by an examiner to review a claims file will render an examination inadequate if there is information in the claims file that is important and necessary for a doctor to make an informed medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the examiner to consider all of the relevant evidence before forming an opinion). As to any assertion by the appellant that his hearing worsened during service, the Board does not question the competency of the appellant to report on his ability to hear in service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the "[l]ay testimony is competent . . . to establish the presence of observable symptomatology). Here, however, the relevant inquiry turns on whether there was a change in the underlying pathology of the pre-existing hearing loss, "as distinguished from the mere recurrence of manifestations of the pre-service condition." Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (stating that "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability."). The Board finds that whether there was a chronic worsening of the pre-existing hearing loss is a medical determination. Therefore, because the appellant is a lay person without the appropriate medical training and expertise, he is not competent to state that his hearing loss underwent a chronic worsening in service, especially in light of the fact that the evidence fails to demonstrate the aggravation of that condition in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Upon a review of the medical evidence of record, the Board finds that there is no evidence demonstrating that the appellant's pre-existing hearing loss chronically worsened (i.e., underwent a permanent increase in the underlying pathology beyond the natural progression) during his military service. Accordingly, because the appellant's hearing loss was noted to have pre-existed his period of ACDUTRA, and did not undergo an increase in severity during service, the Board finds that the claim for service connection for hearing loss must be denied, as the appellant has failed to meet his burden of demonstrating an aggravation of disability. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Donnellan, supra. Turning to the appellant's claim of service connection for tinnitus, the Board notes that the private medical evidence of record does not address the appellant's tinnitus; nor do the appellant's STRs suggest the onset of tinnitus to have been during a period of service. Indeed, on his February 1969 report of medical history, the appellant denied any ear problems. Regarding the appellant's claimed tinnitus, the VA examiner opined that it was less likely than not that the appellant's tinnitus was related to any acoustic trauma sustained in service. Rather, the examiner opined that the appellant's tinnitus was at least as likely as not a symptoms associated with his hearing loss. The examiner noted that tinnitus is a known symptom of hearing loss and indicated that, given that the appellant's hearing loss was not shown to be aggravated in service, it was less likely than not that any current tinnitus was attributable to a period of ACDUTRA or INACDUTRA. Based on this evidence, the Board finds that the appellant's tinnitus was not incurred in service. Indeed, there is no evidence to show that his tinnitus began during a period of ACDUTRA, or is otherwise attributable to a disease or injury sustained therein As to the appellant's assertion on his application for VA disability compensation that his tinnitus began in 1969, the February 1969 report of medical history suggests otherwise and there is no other evidence of record to support a finding that tinnitus is related to a period of ACDUTRA. Further, as the VA examiner has attributed the appellant's tinnitus to his hearing loss, which finding is not contradicted by any other evidence of record, the Board cannot conclude that service connection for tinnitus is warranted, as the appellant's hearing loss is not related to service. Accordingly, because the appellant's tinnitus has not been shown to be caused by a disease or injury incurred or aggravated during a period of ACDUTRA, the Board finds that the claim for service connection for tinnitus must be denied. See 38 C.F.R. §§ 3.303, 3.304, 3.306; see also Acciola, supra. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not helpful to the appellant. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990); 38 C.F.R. §§ 3.102 (2013). II. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between military service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished. Specifically, the Board finds that letters dated in November 2008 and August 2012 fully complied with the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Those letters advised the appellant of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. They also specifically notified him of the information and evidence necessary to substantiate a claim of service connection based on ACDUTRA and INACDUTRA, and included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The appellant has not disputed the contents of the VCAA notice. Further, any error with respect to the timing of fully compliant notice was effectively cured in this case by the RO's readjudication of the appellant's service connection claims via a May 2013 supplement statement. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). The Board finds that the November 2008 and May 2013 notice letters comply with the requirements of 38 U.S.C.A. § 5103(a), and afforded the appellant a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were met. Regarding the duty to assist, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the appellant's claims has been obtained. The evidence includes his STRs, service personnel records, a VA examination report, private medical evidence, and statements from the appellant. The Board also finds that no further action is necessary to ascertain the nature of the appellant's service, as the service personnel records obtained on remand contain sufficient information for the Board to adjudicate the merits of the appellant's claims. Further, the appellant was afforded a VA examination in connection with his claims for service connection for hearing loss and tinnitus. The examination report shows that the examiner reviewed the claims folder and considered the lay contentions of the appellant, as well as the private opinion of record, before expressing an opinion regarding the likelihood that the appellant has hearing loss or tinnitus related to service. The Board thus finds that the appellant has been afforded an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs