Citation Nr: 1339316	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  08-07 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Luke McCabe, Associate Counsel
INTRODUCTION

The Veteran served on active duty (AD) in the U.S. Army from November 1979 to July 1982.  She also had additional service in the Army Reserves from 1983 to 1987 and in the South Carolina Army National Guard from 1987 to 1995, presumably at times on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2008, in support of her claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. 

In an April 2010 decision, the Board reopened the claim because there was new and material evidence since a prior final and binding decision denying the claim.  But rather than immediately readjudicating the claim on its underlying merits, the Board instead remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.  The remand required the RO/AMC to schedule the Veteran for a VA compensation examination to determine the nature and etiology of her claimed hearing loss disability, particularly insofar as its alleged relationship with her military service.

In November 2011, the Board again remanded the claim because the RO/AMC had not sufficiently complied with the Board's prior April 2010 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure this compliance).  The Board found the May 2010 VA examination inadequate for adjudicatory purposes and resultantly instructed the RO/AMC to provide the Veteran another examination and opinion regarding whether her hearing loss had pre-existed her service and, if so, whether it had been aggravated during or by her AD service in the U.S. Army or by her additional Reserve and National Guard service.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate).

Also in the November 2011 Board remand, it was noted that still additional claims of entitlement to service connection for tinnitus and a total disability rating based on individual unemployability (TDIU) had been raised by the record but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Because initial adjudication of the tinnitus claim by the RO has not yet been completed, it is not yet ripe for appellate review by the Board.  Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).  With regards to the issue of entitlement to a TDIU, there equally is no indication this other claim since has been adjudicated, either, so the Board is again referring it to the RO for all appropriate development and consideration.  See id.

As for the claim for service connection for bilateral hearing loss, after having the Veteran examined and considering the results and other evidence of record, the AMC issued an August 2012 supplemental statement of the case (SSOC) continuing to deny this claim.  So this claim is again before the Board.



FINDING OF FACT

The Veteran had hearing loss when entering service, but it was permanently exacerbated by her service beyond the condition's natural progression.


CONCLUSION OF LAW

The Veteran's military service aggravated her pre-existing hearing loss.  38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural notice and assistance VA must provide claimants in certain cases upon receipt of a complete or substantially complete application for benefits.  If the VCAA is applicable, the Board must ensure that its required notice and assistance provisions have been adhered to.  The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Here, though, the Board is granting this claim.  The Board resultantly need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations.


Service Connection

In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service in the line of duty or, if preexisting service, was aggravated during or by it, meaning chronically or permanently worsened beyond the condition's natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.  In addition, certain chronic diseases, including sensorineural hearing loss as an organic disease of the nervous system, may be presumed to have been incurred during service if they become disabling to a compensable degree (generally meaning to at least 10-percent disabling) within one year of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary, however.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309(a) (2013).

For a showing of chronic disease in service, or with an applicable presumptive period, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  By regulation, sensorineural hearing loss is subject to service connection based on continuity of symptomatology as an "organic disease of the nervous system."  The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.  See, too, Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (reaffirming that sensorineural hearing loss is an organic disease of the nervous system).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.

The Veteran's September 1979 military enlistment examination documents that she had bilateral (left and right ear) defective hearing.  The results of an audiogram performed at that time support that finding.  Although she was retested upon entry onto AD in November 1979, so just some two months later, and contrarily found not to have any hearing-related problems or issues, there is indication at the time of her enlistment into the military that she had pre-existing hearing loss.  See 38 C.F.R. § 3.304(b).

There resultantly is no question that hearing loss pre-dated her enlistment.  If, as here, a pre-existing disability was noted on entry into service, the Veteran 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 her to establish aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  The presumption of aggravation applies only when a pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required to establish an increase in disability).  If, however, an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b).  Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by her military service.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).


"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334   (1993).

Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).  

Turning to the evidence of record, the Veteran's service treatment records (STRs) reflect an increase in severity of her bilateral hearing loss during her active service.  Specifically, a November 1979 audiogram shows normal hearing acuity and a January 1981 respiratory consultation record is negative for any hearing loss or bilateral ear conditions.  But although she did not have a separation examination, her October 1983 extension examination reflects that she had significant bilateral hearing loss within a short time after separating from AD.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988), and indicating the threshold levels that reflect some degree of hearing loss).  The evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service, shows an increase in the severity of her hearing loss during her active service.  Thus, her hearing loss is presumed to have been aggravated by her service.

Consider also that the aggravation concerns her AD service, not in relation to her additional, subsequent, service on ACDUTRA or INACDUTRA - which is important to point out because certain presumptions (e.g., of service incurrence or aggravation) are only applicable to AD service, not also ACDUTRA and INACDUTRA service.  See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Moreover, the January 2011 VA examiner concluded that the pre-existing hearing loss disability was indeed aggravated by noise exposure and consequent injury (acoustic trauma) during this Veteran's service.  In rendering the opinion, the examiner reviewed the Veteran's STRs, noting both her enlistment audiogram showing "severe hearing loss bilaterally" as well as her audiogram upon entry into AD reflecting normal hearing.  Additionally, the examiner considered the Veteran's report of exposure to hazardous noise levels in service.  Describing the Veteran as "profoundly hearing impaired," the examiner concluded that, although the entrance audiogram showing severe hearing loss conflicted with the subsequent retest that instead showed normal hearing acuity, if the Veteran's hearing loss was determined to pre-exist service "it is at least as likely as not that [her in-service exposure to] motor pool noise from tactical vehicles, and periodic small weapons qualification aggravated her hearing loss bilaterally."

The April 2011 addendum opinion does not constitute clear and unmistakable evidence that the increase in disability was due to the natural progression of the disease, rather than service-related aggravation.  See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b); Cotant, 17 Vet. App. at 131.  See also Paulson, 7 Vet. App. at 470-471; Crowe, 7 Vet. App. at 246.  Although the examiner concluded that the profoundness of the hearing loss was inconsistent with a diagnosis of noise-induced hearing loss, the examiner did not reconcile the previous positive opinion regarding aggravation with the determination that the Veteran's hearing loss was less likely as not related to her military service.  The mere fact that she had hearing loss prior to her service necessarily means her service is not the source or cause of her hearing loss, but this does not also mean that her service did not aggravate it.  Additionally, the examiner's addendum opinion does not account for the STRs from November 1979 and January 1981, discussed above, that are unremarkable for hearing-related problems or issues.  Finally, the examiner did not comment on the etiology of the Veteran's hearing loss in terms of what caused it, if not her military service.  Thus, the opinion disassociating her hearing loss from in-service noise exposure and stating that her hearing loss 
pre-dated her service and remained unchanged during her AD, so was not aggravated, is insufficient when viewed in light of the other probative evidence in the file to rebut the presumption of aggravation.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Beverly, 9 Vet. App. at 405.

For these reasons and bases, when resolving all reasonable doubt in her favor, it is just as likely as not the Veteran's hearing loss was aggravated by her military service.  38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  So her claim for service connection must be granted.


ORDER

The claim for service connection for bilateral hearing loss is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs