Citation Nr: 1751562	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  15-32 301	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California



THE ISSUE


Entitlement to service connection for hearing loss.



REPRESENTATION

	
Appellant represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD


K. Jobe, Associate Counsel

INTRODUCTION

The Veteran had honorable active duty for training (ACDUTRA) with the United States Army from July through November 1964, and subsequently served in the Army Reserves until October 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. 

The matter was brought before the Board in September 2015. In January 2016 a remand was issued warranting a reopening of the bilateral hearing loss claim. August 2016 the Board requested additional records.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a) (2) (West 2014).


FINDINGS OF FACT

1.  The Veteran currently has bilateral hearing loss that meets the criteria of 38 C.F.R. §3.385.

2.  The Veteran was exposed to acoustic trauma during his period of ACDUTRA.

3.  The Veteran's bilateral hearing loss was incurred during ACDUTRA.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability incurred in service.  38 U.S.C.A. §§ 106(d), 1101, 1131, 5103, 5103A, 5107, 5109 (West 2014); 38 CFR §§ 3.6, 3.102, 3.303, 3.304, and 3.385 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.	Procedural Duties

The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Board finds that the notification requirements in this case have been met.  The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case.  38 U.S.C.A. §§ 5103 and 5103A.

VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the August 2016 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998).

II.	Service Connection 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  Service connection may also be warranted where a service-connected disability caused or worsened the injury.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).

 To establish a right to compensation for a present disability, a veteran 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  Active Duty for Training (ACDUTRA) is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1).

ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C.A. § 101 (24); 38 C.F.R. § 3.6(a).  A claimant whose claim is based on a period of ACDUTRA or inactive duty for training (INACDUTRA) cannot be entitled to the presumption of service connection for enumerated diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); see also 38 U.S.C.A. §§ 101(24) (B), 1112, 1137; 38 C.F.R. §§ 3.6(a), 3.307(a).  Therefore, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1110, 1131. 

The Veteran has claimed entitlement to service connection for bilateral hearing loss. He contends that he incurred this disability as a result of not wearing hearing protection during rifle, firearms, and hand grenade training during his ACDUTRA time with Army Reserves.


III.	Hearing Loss

Impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.  The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

*On the authorized audiological evaluation in February 2004 pure tone thresholds, in decibels, were as follows




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
50
50
80
LEFT
25
25
35
55
70

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 92 percent in the left ear.

Also, in August 2013 the Veteran submitted to an examination by a VA approved medical professional.  The examiner found sensorineural hearing loss present, in accordance with VA standards, i.e., auditory threshold was greater than 25 decibels in the 500-4000 hz range, bilaterally.  The Veteran has established the first element of service connection of a current disability based on the foregoing examinations.

As mentioned, the second element requires in-service event or injury.  In his September 2015 substantive appeal, the Veteran stated that he was required to train on a variety of weapons including rifles, handguns, and explosives.  This training did not include any hearing protection.  The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as loss of hearing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Veteran's lay statements are deemed credible as they are internally consistent with military service records. 

Military personnel records confirm that in November 1967 the Veteran was given the title of a weapons infantry officer, and in August 1968, at the end of an ACDUTRA period, the Veteran also received an award for training with M-14 rifle, subsequently receiving qualifications for military rifle use. This evidence supports significant and prolonged noise exposure during ACDUTRA.  The second element is satisfied.

The third element requires a causal connection between the in-service event and current disability.  The service records lay statements, as well as opinion evidence supports that the third element is established. 

Entry and discharge evaluations show no hearing loss from May 1964 through November 1964.  However, in October 1968 mild to moderate bilateral hearing loss was noted in the periodic military examination immediately following the Veteran's August arms training. 

The Veteran began seeking treatment with Kaiser Permanente in 2004 for hearing loss, and since that time has always maintained that his hearing problems were from arms and explosives training in service.  One of the audiologists, K.D., who reviewed the Veteran's records and performed multiple audiographic tests, opined in February 2012 that the hearing loss was causally connected to his time in service performing arms training.  She notes that based on the reported history the hearing loss is related to military service.  This is due to an absence of hearing protection while shooting firearms on the rifle range; in addition the audiologist considered that the Veteran reported no other noise exposure since or during his time in service. 

In October 2013, Kuo, M.D., a private physician at Kaiser, also issued in opinion related to the Veteran's hearing loss.  Dr. Kuo, reviewed the examinations performed from 1964 through 1968, and determined that the noise exposure in service may have contributed to hearing loss. 

Both K.D. and Dr. Kuo are competent and credible to perform and interpret audiographic testing, review hearing charts over the period at issue, and make conclusions based on the medical findings. 

The VA examiner issued one opinion in August 2013 and two subsequent addendums.  The first two opinions offered were positive in finding that the Veteran's current hearing loss, first presenting in 1968, was causally related to his active service.  In the second addendum, the examiner found that the hearing loss is at least likely as not related to or caused by an event in active service (April 2016) because the Veteran entrance and separation exams in 1964 both supported normal hearing based on the whisper test.  The Board notes that the whisper test is now an outdated exam no longer performed to satisfy VA definitions of hearing loss. 

In comparing the two private opinions to the VA examiner opinion, all three come from medical professionals who reviewed the files as well as personally evaluated the Veteran.  However, the physicians at Kaiser have treated the Veteran for nearly a decade, been able to distinguish hearing loss from other factors, such as age.  The records supporting significant noise exposure during 1968 ACDUTRA arms and explosives training and the contemporaneous examination supports hearing loss. 

Given the Veteran's current hearing loss, credible statements of hearing loss in-service due to noise exposure, lack of noise exposure post-service, medical records from Kaiser, and medical opinions from both private physicians and VA examiners; the balance of the record is at least equipoise, as to whether the current hearing loss is related to his period in of service.  In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for hearing loss is granted. 



____________________________________________
B. Mullins
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs