Citation Nr: 1604099	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  14-06 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served in the North Dakota Air National Guard from January 1956 to January 1992, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which, in pertinent part, denied entitlement to service connection for a bilateral hearing loss disability.

In September 2015, the Board requested an opinion from a VHA audiologist which was received in November 2015. The Board finds that the November 2015 VHA medical opinion is adequate to decide the claim of service connection for a bilateral hearing loss disability. The opinion expressed within the November 2015 VHA medical opinion considered all the pertinent evidence of record, to include the lay evidence of record, and provided a complete rationale for the opinions stated. The Veteran was provided with copies of the opinion was provided with an opportunity to respond.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The Veteran served in the North Dakota Air National Guard, including periods of ACDUTRA and INACDUTRA.

2. The Veteran experienced acoustic trauma during a period of ACDUTRA.

3. The Veteran's current bilateral hearing loss disability had is etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2015).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection Laws and Regulations

To have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a member of the National Guard must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. 

ACDUTRA is full time duty for training purposes performed by the Reserves and members of the National Guard pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by the Reserves and members of the National Guard pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, and "any period of 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 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); 38 C.F.R. § 3.6(a) (2015).

Generally, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or an injury incurred or aggravated during INACDUTRA, but presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for periods of ACDUTRA or INACDUTRA is not appropriate in this case.

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). 

In the case of conflicting medical opinions, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Service Connection Analysis

The Veteran contends that the acoustic trauma he experienced on the rifle range during his initial training and periods of ACDUTRA each year during his service caused his current bilateral hearing loss disability. He also contends that he experienced an acoustic trauma due to the noise he encountered while flying in a C-130 from Fargo, North Dakota to England. Finally, he contends that he was exposed to excessive noise and experienced acoustic trauma due to the loud noises he was exposed to as a cook in the National Guard, including cooking using gas burners, the banging of pots and lids, steam cookers, and generators and light units in the field. The Board finds each of these statements as to the Veteran's perception of his hearing loss and noise exposure to be credible, as they are consistent with the details of his service. 

In this case, an October 2012 memorandum from the North Dakota National Guard certified that the Veteran had numerous periods of "full-time duty" under Title 32, with the first period in June 1956 and the last period in November 1991. The Veteran also had a period of federal service under Title 10, from September 22, 1990 to September 23, 1990. The Veteran's periods of service under Title 32 are considered ACDUTRA. Each hazardous noise exposure alleged by the Veteran to have caused an acoustic trauma leading to his current bilateral hearing loss disability occurred during periods of ACDUTRA. Therefore, the Board finds that the Veteran experienced acoustic trauma during his service.

Service treatment records reflect that his hearing was tested using the Whisper Test on January 10, 1959 and January 13, 1956.  He received a score of 15/15 on each Whisper Test.

The Veteran's hearing was regularly tested using an audiometer starting in January 1962 and again every few years throughout his service.  The Service Department transitioned from measuring audio exams in American Standards Association (ASA) units to using International Standards Organization (ISO) units on November 1, 1967.  Therefore, the Veteran's January 1962 and January 1965 audiometer results must be converted from ASA units to ISO units prior to consideration. After converting from ASA units to ISO units, the Veteran's audiometer results from January 1962 indicate that the Veteran had bilateral hearing loss, with 55 dB at a frequency of 4000 Hz, bilaterally. The Veteran's audiometer results from January 1965, once converted from ASA units to ISO units, also indicate bilateral hearing loss, with readings in excess of 60 dB at 3000 Hz and 4000 Hz, bilaterally. The Veteran's audiometer readings in January 1968, November 1972, January 1977, December 1983, and December 1987 all indicate a bilateral hearing loss disability.

The Veteran was afforded a VA audiology examination in February 2013.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner stated that the Veteran's military job was as a cook/food service during his entire period of service, which is rated as low probability for hazardous noise exposure. In addition, the examiner noted that the Veteran served on active duty in periods of one to 16 days at a time. The Veteran reported occupational noise exposure outside of the service from working for the railroad and from hunting. The examiner opined that it was less likely than not that the Veteran's current hearing loss is the result of noise exposure during military service. The examiner's rationale for this opinion was a finding that the Veteran had a low probability of hazardous noise exposure during military service and significant noise exposure from railroad and hunting outside of military service in the same time frame as periods of active duty.

In his September 2013 Notice of Disagreement, the Veteran stated that he had no loss of hearing prior to entering the service, though he did have the mumps as a child.  All of his service treatment records state that he had no complications from the mumps.  He states that he first noticed hearing difficulties after being on the rifle range at basic training and firing the M-1 carbine.  He reports shooting between 50 and 80 rounds at a time to qualify for the Air Force.  He also reports having his ears pop, pain, and ringing in his ears while flying from Fargo to England on a C-130 in 1992.  The Board finds each of these statements as to the Veteran's perception of his hearing loss and noise exposure to be credible. See Layno, 6 Vet. App. at 469.

In September 2015, the Board requested an opinion from a VHA audiologist which was received in November 2015. The VHA audiologist reviewed the claims file and contacted the Veteran by phone to gather additional information regarding any occupational or recreational noise exposure prior to his entry to the National Guard and as a civilian during his service in the National Guard. The Veteran reported to the audiologist that he worked for the railroad cleaning out boxcars for three to four years before entry into the National Guard, but this job did not expose him to running train engines or any other excessive noise. The Veteran reported driving a sanitation truck for about two and a half years after he worked for the railroad. He then reported working in a grocery store loading and unloading trucks and stocking the shelves. 

The Veteran further reported to the VHA audiologist that he spent 30 days on active duty in basic training upon joining the National Guard, which included frequent firing of carbine rifles, four to five days each week, on the firing range while standing next to other recruits continuously firing their weapons with no hearing protection. He reported that they each fire 80-100 rounds during the daily training at the firing range. The Veteran stated that he did some deer hunting in his early thirties, but this was infrequent and after he had been in the National Guard for 12 years. 

The VHA audiologist opined that the Veteran's bilateral hearing loss disability is at least as likely as not related to or caused by military noise exposure dating to 1956. In making this determination, the audiologist opined that the Veteran's noise exposure on the rifle range constituted a significant amount of damaging noise exposure. The audiologist stated that the Veteran's in-service audiometric testing revealed a moderately severe high frequency sensorineural hearing loss which is consistent with high level noise exposure. Finally, the audiologist based his opinion on his determination that the Veteran's civilian occupational and recreational noise exposure was sporadic and minimal when compared to the Veteran's noise exposure during his first 30 days of basic training in the National Guard.

As the medical opinions are in conflict as to the etiology of the Veteran's right shoulder disability, the Board must weigh the weigh the credibility and probative value of these opinions. The November 2015 VHA audiologist relied upon a more detailed and accurate statement of the Veteran's service and civilian occupational and recreational noise exposure than that relied upon by the February 2013 VA examiner. Therefore, November 2015 VHA audiologist's opinion has greater probative weight than the opinion of the February 2013 VA examiner. See Evans, 12 Vet. App. at 30; see also Wensch v. Principi, 15 Vet. App. at 368.

Upon review of all the evidence of record, the Board finds that the preponderance of the evidence weighs in favor of a finding that the Veteran's current bilateral hearing loss disability was caused by acoustic trauma during a period of ACDUTRA. Accordingly, service connection for a bilateral hearing loss disability is granted.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs