Citation Nr: 21009457 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-28 218 DATE: February 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The appellant does not have a current bilateral hearing loss disability that was caused or aggravated by a disease or injury that was incurred in the line of duty during a period of active duty for training; nor does he have a current bilateral hearing loss that was due to an injury that was incurred in the line of duty during a period of inactive duty training. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training (ACDUTRA) from October 1968 to February 1969. His DD Form 214 from this period notes that he had been “Ordered to ACDUTRA” with the United States Army National Guard. It notes that, following this service, he was “Release[d] to ARNG [Army National Guard] of California.” The appellant subsequently served on active duty for training and inactive duty training. According to an honorable discharge certificate in the appellant’s claims file, the appellant was discharged from the Army National Guard of California in June 1974. This matter comes before the Board on appeal from a February 2016 Regional Office (RO) rating decision. Entitlement to service connection for bilateral hearing loss is denied. The appellant contends that he has incurred hearing loss due to acoustic trauma suffered during his 4.5 months of active duty for training and six years of inactive duty training. He contends that, between his active duty for training and inactive duty training, he fired thousands of artillery rounds. (See May 2016 notice of disagreement.) Service connection is warranted where the evidence of record establishes that an 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a claimant 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). Active military, naval, or air service includes any period of active duty for training 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 inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21-24); 38 C.F.R. § 3.6. Thus, when a claim for service connection is based on a period of active duty for training, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training; or for inactive duty training, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of inactive duty training. 38 U.S.C. §§ 101, 106, 1110, 1131. The advantages of certain evidentiary presumptions that assist claimants in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. at 470-71; see also Smith v. Shinseki, 24 Vet. App. 40, 48 note 7. Therefore, the presumptions of sound condition at entrance (38 U.S.C. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training. Only periods of Federalized service in the National Guard are qualifying service for the purpose of VA compensation benefits. See Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (explaining that “members of the National Guard only serve the [F]ederal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor.”). In the case at hand, the appellant’s claim was remanded to verify his dates of service and the classification of such service. On remand, VA verified that the appellant served on periods of active duty for training and inactive duty training that were, in fact, Federalized service, and they are thus considered qualifying service for the purpose of VA compensation benefits. On remand, a National Guard Bureau Retirement Credits Record lists the following dates of Active Duty or Active Duty Training: October 1, 1968 to February 15, 1969; June 14, 1969 to June 19, 1969; June 20, 1969, to June 28, 1969; July 11, 1970, to July 25, 1970; June 26, 1971, to July 10, 1971; July 15, 1972, to July 29, 1972; and July 15, 1973, to July 29, 1973. (The Board notes that all of this service was active duty for training.) The appellant served on inactive duty training for a weekend each month, but the exact dates of each of those weekends of service cannot be verified. In January 2021, the appellant submitted a statement in which he expressed concern that his 5.5 years of National Guard service has been disregarded by VA. He specifically noted that the examiner who conducted a December 2020 VA examination took no interest in his identification of his date of Reserve service. Specifically, he noted that he reported at the examination that “there was 5 1/2 years of one weekend a month and 5 1/2 years of 2 weeks every summer.” He stated that “It is very disturbing to me that my active reserve duty is simply dismissed!” The Board notes that, for periods of active duty for training and inactive duty training, it must be demonstrated that the appellant’s hearing loss is due to acoustic trauma that occurred while he was performing his duties. It is not sufficient for him to demonstrate that he incurred hearing loss at any point during the 5.5 years during which he was enrolled in the National Guard. Nor is it sufficient for a medical expert to speculate that the appellant has a current hearing loss disability that is due to the cumulative effects of noise exposure that he suffered while performing his duties during his 5.5 years of National Guard service. Rather, to establish entitlement to service connection for bilateral hearing loss, the competent evidence of record must link a current hearing loss disability to a specific incident of acoustic trauma that occurred during his active duty for training or inactive duty training. For the purposes of applying the laws administered by VA, 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The existence of a current hearing loss disability for VA purposes is established in this case. (See, e.g., December 2020 VA hearing loss and tinnitus examination report.) With respect to an in-service injury, the appellant’s DD Form 214 reflects that his active duty for training was with “Army NGUS Arty [Artillery].” Upon separation from service, he reverted to the California Army National Guard. He contends that he experienced hearing loss difficulties during his inactive duty training, noting that: When I returned from the various drills/summer camps to my civilian job as a banker the secretaries would often ask me “aren’t you going to answer your phone today?” So for the following few days I would have to watch for the phone buttons to light up to be sure that I answered my phone. (See May 2016 notice of disagreement.) He also reported that his wife and kids complained about his hearing during his early 30s, and that an ear, nose, and throat physician linked his hearing loss to his in-service noise exposure. (See May 2016 notice of disagreement.) He has reported that he has been unable to obtain records from this physician because the physician is deceased. (See September 2017 personal statement.) With respect to in-service hearing loss disability, the audiograms from the June 1968 enlistment and January 1969 release from active duty examination reports both read as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 0 LEFT 0 0 0 X 0 The appellant expressly denied any history of, or current, ear, nose, or throat trouble on his June 1968 enlistment medical history report. (This medical history report does not ask whether he had a history of, or current, hearing loss.) He expressly denied any history of, or current, hearing loss and ear, nose, or throat trouble on his January 1969 release from active duty (REFRAD) examination report. He reported that his usual occupation was “banker.” In February 1969, the day before his separation from this period of service, the appellant completed a form on which he asserted that there has been no change in his status since the REFRAD examination. Otherwise, the service treatment records from this period reflect that the appellant neither complained of nor was treated for any symptoms that have been associated with hearing loss. The Board notes that, historically, it was assumed that, on November 1, 1967, Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization - American National Standards Institute (ISO-ANSI) standards when providing audiograms. Now, however, for Service Department audiograms that were conducted between January 1, 1967, and December 31, 1970, VA is to consider the data under both ASA and ISO-ANSI standards and apply the standard that is most favorable to the appellant. For service audiological evaluations conducted after December 31, 1970, VA protocol is to presume the ISO-ANSI standard was used. In the case at hand, it is more favorable to the appellant to convert the January 1969 REFRAD audiogram findings, but not the June 1968 enlistment audiogram findings, from ASA to ISO-ANSI standards, as this conversion would presume an in-service hearing threshold shift between his enlistment and his release from active duty for training. In order to convert examinations that are recorded in ASA standards to ISO-ANSI standards, the following numbers are added to the ASA standard data: HERTZ 500 1000 2000 3000 4000 15 10 10 10 5 Thus, converting the appellant’s January 1969 audiogram results from ASA to ISO-ANSI standards would yield the following audiogram readings: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 X 5 LEFT 15 10 10 X 5 The appellant’s service treatment records also contain a January 1973 periodic examination report that contains the following audiogram readings: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 X 30 LEFT 10 10 0 X 40 The appellant expressly denied any history of, or current, hearing loss or ear, nose, or throat trouble on his January 1973 periodic medical history report. He noted on this record that his usual occupation was “Banker.” The service treatment records reflect that the appellant neither complained of nor sought treatment for any specific instance of acoustic trauma during his active duty for training or inactive duty training. Post-service medical records include a November 2015 private medical record that diagnoses the appellant with “Slight to severe sloping sensorineural hearing loss, [bilaterally].” The appellant underwent a VA hearing loss and tinnitus examination in February 2016 that sought an opinion with respect to his active duty for training period from October 1968 to February 1969. Based on review of the record and interview and examination of the appellant, the examiner diagnosed bilateral sensorineural hearing loss. The examiner opined that the appellant’s hearing loss is not at least as not caused by or a result of an event in military service. The examiner noted that the appellant’s audiogram readings were 0 decibels in each ear at each applicable frequency at the time of his January 1969 separation examination. The examiner cited an Institute of Medicine study stating that there is no scientific basis for delayed or late onset noise induced hearing loss. The examiner also noted that a recent 2010 study “reported that both veterans and non-veterans were equally likely to have hearing loss and that degree of hearing loss increased with age.” The examiner thus found that “it is difficult to attribute this recent hearing impairment functioning solely to the trauma suffered during military service and not to consider other factors such as aging and noise exposure from occupational activities after military service.” The Board must find that this opinion is not probative, as it is based on an assumption of no threshold shift during this period of active duty for training, as the examiner did not convert the appellant’s separation examination audiogram from ASA to ISO readings. The appellant submitted an April 2016 opinion from a private audiologist who opined that, “[m]ore than likely, [the appellant’s] hearing loss is connected to his 6 years of military service given no other noise exp[osure].” This opinion notes the appellant’s in-service history of noise exposure during both active duty for training and inactive duty training. The appellant reported that his family noted a hearing loss when the appellant was in his early 30s, and that he worked as a banker and in other office jobs since leaving service. There was no additional indication of noise exposure. There are two deficiencies with the April 2016 opinion that greatly diminish its probative value. The first of these deficiencies is that the April 2016 private medical opinion does not reflect a review of the claims file, which contains such relevant evidence as in-service audiograms dated in June 1968 and January 1969 during a period of active duty for training that spanned from October 1968 to February 1969. The second deficiency with the April 2016 opinion is that the examiner did not identify a specific event causing acoustic trauma during a qualifying period of service but rather appeared to argue that the cumulative effect of exposure to loud noise caused hearing loss. As noted above, when a claim for service connection is based on a period of active duty for training, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during a specific period of active duty for training; or for inactive duty training, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during a specific period of inactive duty training. That is, the appellant must be able to identify a specific instance of injury, not merely an accumulation of noise exposure over a period of time. The Board further notes that the appellant’s six-year period of service includes extensive periods during which the appellant was not on active duty, active duty for training, or inactive duty training. For VA disability compensation purposes, active duty for training and inactive duty training is treated differently than active duty. The appellant underwent another VA examination in December 2020. The examiner was asked to provide an etiology opinion with respect to whether it is “at least as likely as not (a 50 percent probability or greater) that there is a medically sound basis for concluding that the appellant’s current bilateral hearing loss was incurred during his period of active duty for training from October 1968 to February 1969.” The VA examiner was directed to convert the January 1969 audiogram readings, but not the June 1968 audiogram readings, from ASA to ISO-ANSI standards. Such readings suggested a threshold shift during that period of the appellant’s active duty for training. Based on review of the record and interview and examination of the appellant, the VA examiner opined that the appellant’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner noted that the June 1968 audiogram results were not converted but the January 1969 audiogram results were converted. The examiner noted that the appellant was called to active duty from October 1968 to February 1969. His military occupational specialty (MOS) was field artillery. The examiner noted that “Hearing tests dated 1968 and 1969 show hearing within normal limits in both ears.” The examiner noted that “Although the converted separation exam in 1969 is borderline at 500Hz (at 14dB), a threshold shift at 500Hz is not consistent with a noise induced hearing loss.” The examiner noted that “Review of DD214 does not indicate combat service or placement in an imminent danger environment, nor is there evidence of a specific injury during his activated period of service.” Therefore, the examiner concluded, “Based on review of medical records, hearing loss is less likely than not related to military service.” The Board finds this opinion to be highly probative, as it was authored by an audiologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the appellant. Its rationale discusses the facts of the appellant’s case and pertinent medical principles and applies the correct legal standard. The Board notes that the VA examination request was authored prior to VA’s receipt of the January 1973 periodic examination and medical history reports. The Board finds that a remand is not warranted to obtain a new opinion that considers this new evidence. This is because the periodic examination or medical history report itself does not contain a complaint of hearing loss related to an incident of in-service acoustic trauma coinciding with a specific period of service. The mere fact that the January 1973 periodic examination report reflects some degree of hearing loss in the right ear and a hearing loss disability for VA purposes in the left ear does not establish that it had its onset during a specific period of qualifying service or is otherwise due to a specific period of qualifying service. In the absence of a suggestion of actual onset based on an instance of acoustic trauma that occurred in the line of duty, the Board finds that a remand for a new opinion is not warranted. On the contrary, the appellant’s service treatment records contain examination reports dated shortly prior to his entrance into a continuous period of active duty for training and his release from that period of service. Therefore, the Board presumes that, had the appellant incurred hearing loss during that period of service, such disability would have been incurred in the line of duty. The Board notes that the appellant submitted a statement in January 2021 in which he asserted that the VA examiner ignored his period of “active reserve duty.” He noted that “The technician asked me about the dates and I confirmed my initial active duty dates and reminded her that there was 5 1/2 years of one weekend a month and 5 1/2 years of 2 weeks every summer.” He stated that “It is very disturbing to me that my active reserve duty is simply dismissed! The vast majority of that time was spent at Fort Irwin, California firing 155mm artillery – WITH NO HEARING protection.” The Board acknowledges the appellant’s assertions. The Board notes, however, that the appellant’s contention is that the cumulative effects of repeated acoustic trauma during a period of 5.5 to 6 years of active duty for training and inactive duty training have led to his current bilateral hearing loss. The Board does not doubt that the appellant was exposed to noise from artillery fire. The Board notes, however, that the periods for consideration are characterized as active duty for training and inactive duty training, not as active duty service. As noted by the appellant, the periods that he was actually on active duty for training or inactive duty training following his February 1969 release from active duty for training consisted of one weekend every month and two weeks every summer. When a claim for service connection is based on a period of active duty for training, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during a specific period of active duty for training service. When a claim for service connection is based on a period of inactive duty training, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during a specific period of inactive duty training. In the case at hand, the appellant has not identified a specific instance of acoustic trauma that caused his injury. Rather, he contends that his hearing loss is due to the general accumulation of noise exposure over a period of time. Service connection is not available for active duty for training or inactive duty training service based on the cumulative effect of noise exposure without a specific, identified instance of acoustic trauma in the line of duty that directly caused the hearing loss. Therefore, the criteria for entitlement to service connection for bilateral hearing loss have not been met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.