Citation Nr: 21011551 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-04 216A DATE: March 2, 2021 ORDER Entitlement to service connection for status post-operative gunshot wound in the left forearm is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s the status post-operative gunshot wound in the left forearm, which clearly and unmistakably existed prior to the Veteran’s period of qualifying active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the United States Army Reserves from 2011 to 2014, was aggravated by service. CONCLUSION OF LAW The criteria for service connection for status post-operative gunshot wound in the left forearm are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army between October 2004 to March 2005, February 2006 to September 2006, and May 2009 to July 2009. The Veteran also served in the Army Reserves until separation on June 17, 2014. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132. Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the veteran about the pre-service history of the condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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 line of duty, or any period of INACDUTRA 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(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Id. Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate. ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). 1. Entitlement to service connection for status post-operative gunshot wound in the left forearm The Veteran contends that his status post-operative gunshot wound in the left forearm was aggravated beyond its natural progression as a result of his training during periods of ACDUTRA and INACDUTRA. As an initial matter, the Veteran’s status as a Veteran has been established by his periods of active duty service in the Army between October 2004 to March 2005, February 2006 to September 2006, and May 2009 to July 2009. Further, the Board has verified that the Veteran has had qualified periods of ACDUTRA and INACDUTRA from 2011 to 2014. See DFAS Payment Worksheet dated 2011-2014. The Veteran does not contend nor does the record support that the alleged injury was incurred during the period of ACDUTRA or INACDUTRA. Rather, the Veteran concedes that his initial injury was incurred while he was acting as a civilian after his initial periods of active duty service and prior to his reserve service in 2010. Accordingly, the Board finds the Veteran’s gunshot wound to the left forearm clearly and unmistakably pre-existed his qualifying periods of reserve service. Therefore, the question before the Board is whether the Veteran’s qualifying periods of ACDUTRA or INACDUTRA aggravated the gunshot wound in the left forearm beyond its natural progression. Because the claim for service connection for aggravation of a pre-existing condition is based on a period of ACDUTRA, the Veteran has the burden of showing both that he experienced a permanent increase in disability, and that the increase was beyond the natural progress of his injury during a period of ACDUTRA. See Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). Reserve service treatment records (STRs) show the Veteran was assigned temporary restrictions to his functional capacities as a result of his left arm pain. See STRs dated December 2012. The Veteran was afforded a VA examination in December 2017. The examiner opined that while the Veteran was put on a temporary profile that there was insufficient evidence to substantiate that the temporary profile was due to a new injury or as an aggravation of his prior injury. The examiner opined that it is likely that the Veteran’s symptoms had continued since his original injury in 2010, but there is insufficient evidence to substantiate that the left elbow condition worsened as a result of his drill duties. Rather, the examiner opined the clinical presentation of the left elbow was more consistent with a natural progression of the original injury. The Veteran was afforded an additional VA examination in January 2020. The examiner opined that the medical record suggests that the Veteran’s left forearm gunshot wound, which clearly and unmistakably preexisted service, was aggravated beyond its natural progression by service. The examiner noted that the Veteran reported aggravation of symptoms as a result of not following duty restrictions and his restrictions not being accommodated during drills. The examiner found the Veteran’s revision surgery and repeatedly failed hardware support that the Veteran’s symptoms were aggravated beyond their natural progression by the duties required during his reserve service. Accordingly, the Board finds the clearly and unmistakably preexisting gunshot wound in the left forearm was permanently aggravated beyond the natural progression of the disease. The Board finds that the evidence does not clearly and unmistakably show that the increase in severity of the Veteran’s left forearm injury was clearly and unmistakably due to the natural progress of the condition. The Board further finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran’s current status post-operative gunshot wound in the left forearm’s aggravation is related to reserve duty service. The benefit of the doubt will be conferred in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The service-connection claim for status post-operative gunshot wound in the left forearm is granted. REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claim. 1. Entitlement to service connection for right ear hearing loss is remanded. In January 2020 the Veteran was afforded a VA examination. The examiner opined that despite the Veteran’s conceded acoustic trauma during service, the Veteran’s right ear hearing loss was pre-existing and thereby there was no significant threshold shift during the military in the right ear. The examiner found the Veteran’s hearing loss at 1000 Hz of 30dB constituted pre-existing hearing loss. For the purpose of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Applying the VA standards for hearing loss, the Veteran’s noted hearing in July 2004 did not meet the definition of a disability. Further, the July 2004 examiner noted the Veteran’s hearing loss was within normal limits. Accordingly, an additional VA medical opinion is warranted to consider the Veteran’s hearing loss in accordance with VA regulations. The matters are REMANDED for the following action: 1. Schedule the Veteran for examination pertaining to the claimed right ear hearing loss. The entire claims file must be made available to the designated examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. To the extent possible, the AOJ should provide the examiner with a list of dates of verified active service, including any periods of ACDUTRA and INACDUTRA, for VA purposes. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. 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. The examiner should note that in-service acoustic trauma has been conceded. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right ear hearing loss manifested in or is otherwise causally or etiologically related to any period of active service, to include any noise exposure therein. The examiner should also state whether the Veteran had hearing loss that preexisted any of his verified periods of ACDUTRA and/or INACDUTRA. For the periods of ACDUTRA and/or INACDUTRA that the hearing loss preexisted, the examiner should state whether there was an increase in the severity of the preexisting hearing loss during service, and if so, whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. For the periods of ACDUTRA and/or INACDUTRA that the hearing loss did not preexist, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that any current hearing loss manifested in or is otherwise causally or etiologically related to any period of ACDUTRA or INACDUTRA, to include any noise exposure therein. If the examiner determines that the Veteran’s right ear hearing loss is less likely than not related to a period of service, the examiner should explain why, including why the type of hearing loss is significant. In rendering the opinion, the examiner should discuss medically known or theoretical causes of hearing loss describe how hearing loss which results 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 term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.