Citation Nr: 18156727 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-35 539A DATE: December 11, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for right foot edema is granted. Service connection for left foot edema is granted FINDINGS OF FACT 1. The Veteran currently has bilateral hearing loss for VA compensation purposes. 2. The Veteran experienced acoustic trauma in service during Operation Desert Storm. 3. Acoustic trauma caused the bilateral hearing loss. 4. The Veteran currently has edema in both feet. 5. The Veteran experienced swelling in both feet during a period of ACDUTRA service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left foot edema have been met. 38 U.S.C. §§ 101(21), 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for right foot edema have been met. 38 U.S.C. §§ 101(21), 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps. He served on active duty from November 1970 to November 1972, and again from December 1990 to April 1991. He served as a reservist and had various periods of active duty for training (ACDUTRA) between: January 1973 and September 1986, January 1990 and November 1990, and May 1991 to January 1996. This appeal arises from a May 2013 rating decision, which denied service connection for bilateral hearing loss and edema. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159. As the Board is granting service connection for bilateral hearing loss and edema, the issue is substantiated and there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection Legal Criteria 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. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish the service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury, not diseases, incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). VA’s General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. 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. Service Connection for Bilateral Hearing Loss The Veteran contends that bilateral hearing loss was caused by service as an artilleryman in the United States Marine Corps. He reports loud noise exposure during service. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran is currently diagnosed with bilateral hearing loss (as an organic disease of the nervous system) which is a “chronic disease” under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The bilateral hearing loss meets the VA regulatory criteria of disability at 38 C.F.R. § 3.385. A May 2016 VA audiometric examination report shows pure tone thresholds of 40 dB or greater at 4000 Hz in the right ear and pure tone thresholds of 40 dB or greater at 3000 and 4000 Hz in the left ear. The Board also finds the Veteran was exposed to loud noise (acoustic trauma) during active duty service. He experienced acoustic trauma while serving as an artilleryman during Operation Desert Storm. See DD Form 214. As an artilleryman, he fired machine guns, artillery, and small weapons on a regular basis. See May 2018 Appellant Brief; May 2016 VA Audiometric Examination. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran’s account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). Finally, the Board finds the evidence is at least in equipoise on the question of whether symptoms of the current bilateral hearing loss have been continuous since service separation. Although the VA examiner opined that the hearing loss is less likely than not related to service, throughout the course of this appeal, the Veteran has consistently asserted that his hearing loss was caused by service as an artilleryman, and hearing loss has continued since service separation. See February 2018 Appellant Brief; 2013 Notice of Disagreement. Based on these “continuous” post-service bilateral hearing loss symptoms following in-service acoustic trauma, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria of continuous post-service symptoms for presumptive service connection for bilateral hearing loss under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b) have been met. Because the Board is granting service connection for bilateral hearing loss on a presumptive theory of service connection, all other theories of entitlement are rendered moot. See 38 U.S.C. § 7104. Service Connection for Left and Right Foot Edema The Veteran seeks service connection for edema in both feet. Initially, the Board finds the Veteran currently has diagnosed edema in both feet. See January 2017 Private Medical Record; April 2017 Private Medical Record. Next, the Board finds the edema began during a period of ACDUTRA. While on ACDUTRA in July 1981, both feet began to swell. The Veteran reported this swelling and was diagnosed with “obvious edema” in both feet. In the diagnosis, the service examiner specifically noted that the Veteran had swelling and tenderness in both of his feet and ankles. See July 1981 Service Treatment Record. The Board finds that the evidence is at least in equipoise on the question of whether the edema is causally connected to service. The Veteran initially believed his edema was caused by combat boots. He reported that he wore a different pair of boots and the swelling was relieved somewhat; however, after speaking with a medical examiner, it was determined the edema was more specifically caused by walking while on duty. The examiner noted the edema had not previously had an onset until a period of “much walking.” The service examiner subsequently ordered bed rest for the Veteran, after which he was returned to “light duty” on his feet. See July 1981 Service Treatment Record. (Continued on the next page)   For these reasons, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for direct service connection for edema have been met. 38 C.F.R. §§ 3.102, 3.303. Because the Board is granting service connection for edema on a direct theory of service connection, all other theories of entitlement are rendered moot. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dye, Associate Counsel