Citation Nr: 1343475 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-08 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 1990. He had additional periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) with the United States Naval Reserve and Kentucky Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This case was initially before the Board in March 2012 when a separate claim for entitlement to service connection for a temporomandibular joint disorder was denied. Service connection claims for bilateral hearing loss and tinnitus were remanded at that time. In October 2012, the Appeals Management Center in Washington, DC granted service connection for tinnitus (assigning a 10 percent evaluation from January 16, 2007). Because he has not appealed the rating or effective date assigned to this disability, no claim regarding this disorder is in appellate status at this time. The RO issued a supplemental statement of the case in October 2012 and the appeal is once again before the Board. FINDINGS OF FACT 1. There is credible evidence showing that the Veteran experienced acoustic trauma during his periods of ACDUTRA and/or INACDUTRA. 2. There is competent medical evidence linking his current hearing loss to acoustic trauma during ACDUTRA and/or INACDUTRA service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6(a), 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When 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) (2013). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Active military, naval, or air service includes any period of active duty or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty with the Army National Guard of any State. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his current bilateral hearing loss is the result of acoustic trauma suffered while in the United States Naval Reserve and the Kentucky Army National Guard from January 1991 through June 2004. Prior to his service in the Reserves and the National Guard the Veteran served on active duty. During his period of active duty service he worked as part of the helicopter launch and recovery crew. The Veteran has reported spending a majority of his time working on the flight deck refueling helicopters and completing some helicopter repair. See June 2007 VA examination report. He alleges that after leaving active duty for participation in the Reserves and the National Guard he continued working with helicopters. He acknowledges that as a civilian he was a machinist; however, he asserts that he wore hearing protection while working in this capacity. Id. Hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2013). Initially, the Board finds that a hearing loss disability for VA compensation purposes has been shown. See April 2012 VA examination. The Board parenthetically notes that the Veteran has been awarded service connection for tinnitus determined to be due to noise exposure in service. The Board finds that the Veteran has consistently and credibly asserted that he was regularly exposed to military noise exposure during his ACDUTRA and INACDUTRA service. As such, the Board will concede that he had noise exposure during his ACDUTRA and INACDUTRA service in the United States Naval Reserve and the Kentucky Army National Guard. Accordingly, the remaining question is whether the Veteran's current bilateral hearing loss, is attributable to this ACDUTRA or INACDUTRA injury. As will be discussed in more detail below, a nexus between the Veteran's current bilateral hearing loss disorder and his in-service injury has been shown. Specifically, a June 2007 VA examiner determined that "the onset of the [V]eteran's hearing loss was at some point during his Kentucky National Guard Service." The VA examiner indicated that the Veteran was working as a fulltime machinist in his civilian capacity during that time. After considering the Veteran's time spent at his civilian occupation when compared to his time spent on active duty while in the Guard she concluded that the Veteran's current bilateral hearing loss is less likely as not caused by or a result of military service. Nevertheless, the Board finds this rationale lacks probative value, as it is possible that acoustic trauma can occur in a matter of seconds. In reading the VA examiner's findings in the light most favorable to the Veteran, the Board finds that the VA examiner has conceded that the Veteran's hearing loss began during his Reserve/National Guard service. The Veteran underwent an additional VA examination in April 2012. The VA examiner noted that she agreed with the previous examiner that it "does appear that the onset of the [V]eteran's hearing loss was at some point during his Kentucky National Guard Service rather than his active duty service." She opined that it was less likely as not that the Veteran's hearing loss was due to loud noise exposure while in the service. Rationale was not provided. The United States Court of Appeals for Veterans Claims has held that to have probative value, a medical examination submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). Thus, little probative value is given to this opinion. The Board does find persuasive that the VA examiner, with respect to a pending tinnitus claim, opined in the same VA examination report that "temporary threshold shifts documented while veteran was in the service indicated loud noise exposure." In summary, although the VA examiners provide essentially negative findings, the Board finds that their opinions, when read in a light most favorable to the Veteran, reflect that his current bilateral hearing loss is caused in some part by an ACDUTRA and/or INACDUTRA acoustic trauma injury. Thus, resolving any reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is granted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs