Citation Nr: 20028026 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 12-17 481 DATE: April 21, 2020 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from March 1966 to December 1968. The Veteran also served in the United States Army National Guard from October 1971 to August 1976 and from November 1982 to April 1990, and the Alaska Air National Guard from August 1978 to June 1980 and from April 1990 to July 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). This case was last before the Board in March 2018. At that time, the Board extensively reviewed the procedural history of the claim. For clarity, the Board will repeat it here. VA medical opinions were obtained in March 2010, August 2015, and March 2017 to determine the etiology of his bilateral hearing loss. In January 2017, the Board remanded the claim for an addendum medical opinion. The March 2017 addendum opinion addressed whether the Veteran’s hearing loss was related to his active duty service from March 1966 to December 1968. However, service treatment records during his National Guard service document some hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that threshold levels exceeding 20 decibels indicate some degree of hearing loss). Specifically, audiograms in June 1989, March 1993, February 1994, October 1995, December 1998, and October 2000 reflect clinical hearing loss. Additionally, the March 2010 VA examiner related the Veteran’s hearing loss to inactive duty noise exposure, aging, and occupational and recreational noise exposure, but could not allocate a degree of his hearing loss to each of the etiologies without speculating. As noted above, the Veteran had additional periods of service with the United States Army National Guard from October 1971 to August 1976 and from November 1982 to April 1990, and the Alaska Air National Guard from August 1978 to June 1980 and from April 1990 to July 2004. The March 2010 VA examination report indicated that the Veteran was a civil service employee during such periods; however, his service personnel records indicated that he completed some active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his National Guard service. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman 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. The Board, in March 2018, then proceeded to find that the AOJ had failed to determine the nature of the Veteran's service in the Alaska National Guard, saying: It is unclear whether the Veteran was a civilian employee, on active duty, on ACDUTRA, or on INACDUTRA when he was diagnosed with clinical hearing loss. Therefore, the Board finds that a remand is required to ascertain the dates of the Veteran’s ACDUTRA and INACDUTRA and to obtain a medical opinion to fully discuss his periods of ACDUTRA and INACDUTRA. On September 13, 2018, the AOJ requested information on the Veteran's periods of service from the Defense Finance and Accounting Service (DFAS). However, it only requested information from August 1978 to June 1980. On October 18, 2018, a response from DFAS says "no records were found for the requested time frame and SSN given." However, on September 19, 2019, a VA "military history" report confirms the various periods of service listed above. 38 C.F.R. § 3.159(c)(2) requires VA to make "as many requests as are necessary to obtain relevant records from a Federal department or agency," like DFAS, until VA concludes such records do not exist or would be futile. The Board finds that continued searching is required. Specifically, the September 13, 2018 request did not include all the relevant periods of service, and the September 19, 2019 VA "military history" confirms the Veteran's dates of service based on his personnel records. Accordingly, the Board will remand for a continued records search. The matters are REMANDED for the following action: 1. The RO or AMC should undertake appropriate development to verify through official channels all periods of active duty service, ACDUTRA, and INACDUTRA. The actual dates of service are needed. It is critical that, given the Veteran's service, VA identify precisely what status the Veteran was in for each period of service because this governs whether he is eligible for compensation. If DFAS or some other information source cannot find these records, the AOJ must comply with the notification requirements of 38 C.F.R. § 3.159(c)(2). 2. Once the record is developed to the extent possible, the AOJ should obtain an addendum opinion from the examiner who provided the March 2017 VA medical opinion. All pertinent evidence of record must be made available to and reviewed by the examiner, to include the detailed list of the Veteran’s dates of active duty, ACDUTRA, and INACDUTRA. Following a review of the relevant records and lay statements, the examiner must state an opinion as to whether the bilateral hearing loss at least as likely as not (50 percent probability or greater) originated during service or is otherwise related to service, to include any period of active duty, ACDUTRA, and INACDUTRA. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner must consider and discuss the hearing impairment shown in the June 1989, March 1993, February 1994, October 1995, December 1998, and October 2000 audiograms, the Veteran’s statements concerning the onset of hearing loss, and the Veteran’s post-service noise exposure. The examiner is advised that the absence of a hearing loss disability in the service treatment records does not in and of itself preclude service connection. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and noise exposure. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 3. Then, the AOJ should readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.