Citation Nr: 0002400 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-05 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for disability from residuals of low back injury, including degenerative disc disease. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active duty from June 1945 to November 1946. He also served in the U.S. Army Reserve from November 1964 to March 1987, with multiple periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Honolulu, Hawaii (RO) which denied the veteran's claims for service connection for a back disorder and hearing loss. The veteran testified at a travel Board hearing before the undersigned Board member in June 1999. At that time he submitted additional documentary evidence, along with a waiver of RO consideration of such evidence. FINDINGS OF FACT 1. The veteran served on active duty during World War II and from 1964 to 1987 he performed parachute jumps while serving on active duty for training or inactive duty for training in the Army Reserve. 2. The record does not establish by a preponderance of the evidence that he was disabled due to residuals of low back injury, including degenerative disc disease, during active duty for training or during inactive duty for training. 3. The veteran was on rifle teams and was exposed to rifle fire during periods of active duty for training and/or inactive duty for training. 4. The record does not establish by a preponderance of the evidence that he had a hearing loss disability due to a disease or injury during any pertinent period of active duty for training or due to an injury during inactive duty for training. 5. The veteran has not achieved veteran status for his periods of active duty for training and inactive duty for training with the U.S. Army Reserve. CONCLUSIONS OF LAW 1. Disability due to residuals of a low back injury, including degenerative disc disease, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(2)(23)(24), 1110, 1131 (West 1991); 38 C.F.R. § 3.6 (1999). 2. Hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101(2)(23)(24), 1110, 1131 (West 1991); 38 C.F.R. § 3.6 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA's duty to assist, as established in 38 U.S.C.A. § 5107, is reserved for veterans and their dependents and survivors. See Laruan v. West, 11 Vet. App. 80, 85 (1998). As such, unless a claimant first demonstrates by a preponderance of the evidence that he or she is a "veteran," or that the person upon whose military service the claim is predicated has "veteran status," the laws administered by the Secretary and the resources of the VA are not applicable or available. See Laruan, 11 Vet. App. At 84- 86 (1998). Veteran status must be shown for each period of service upon which the claim of entitlement to service connection is based. For purposes of VA claims, the law makes a clear distinction between those who have served on active duty and those who have served on active duty for training and inactive duty for training. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C.A. § 101(2) (West 1991); 38 C.F.R. § 3.1(d) (1998). The term "active military, naval, or air service" includes: (1) active duty, (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. Active duty for training is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22). Inactive duty for training is defined as other than full-time duty performed by the Reserves. 38 U.S.C.A. § 101(23). The claimant in this case is a "veteran" based on his active duty service during World War II. Therefore, he is entitled to veteran status and the full benefit of VA resources for any compensation claim based on that period of service. The claims in this case, however, are not based on his active duty service during World War II. In order to achieve veteran status and be eligible for service connection for the disabilities claimed during his Reserve service, the record must establish by a preponderance of the evidence that he was disabled during active duty for training due to a disease or injury incurred or aggravated in the line of duty or he was disabled from an injury incurred or aggravated during inactive duty training. See Mercado-Martinez, v. West, 11 Vet. App. 415, 419 (1998). Lumbar spine The veteran contends that he injured his lumbar spine during active duty for training as a result of participation in many parachute jumps during those periods. He states that in 1982 he suffered a muscle contusion/strain in the lumbar area, and that this injury was aggravated by subsequent parachute jumps. He testified at his June 1999 travel Board hearing that over his years in the Reserves he performed hundreds of parachute jumps. Service medical records from the period in which the veteran was a member of the Reserves show that he was treated in July 1982 for pain and loss of motion in his lower back. At that time, he stated that he had wrenched his back during an airborne operation when he landed in an eroded gully. On physical examination, the veteran denied radiation below the waist and had no paresthesias. Pain was located in the left paravertebral muscles of the lower dorsal and upper lumbar spine. It was noted that the veteran had a history of chronic low back problems. Range of motion was full flexion, extension of 15 degrees, right lateral flexion was 45 degrees and left lateral flexion was 30 degrees. He had tenderness over the costovertebral angle, no palpable spasm, no vertebral tenderness, and responded negatively to the straight leg raising test. He was diagnosed with muscular contusion and strain, and vertebral or costal injury was doubted. He was treated conservatively and asked to watch for development of any radicular signs. X-rays were not indicated at the time. There are no other records of episodes of back pain or injury in the service medical records associated with the veteran's Reserve service. At his quadrennial examination in August 1986, several months before he retired from the Army Reserves, his spine was noted to be normal. On the report of medical history, the veteran indicated he had no swollen or painful joints, no arthritis, no bone, joint or other deformity, and no recurrent back pain. A VA compensation and pension examination of the spine was performed in April 1996. The veteran was noted to have increased muscle tone/spasm of the paraspinous muscles. X- rays of the lumbosacral spine showed long-standing disc degeneration at the 4th lumbar interspace. X-rays of the thoracic spine showed mild degenerative changes. The diagnosis was chronic low/mid back pain, status post injury, with x-ray evidence of degenerative disc and joint disease of the thoracic and lumbar spine. A VA examination also was performed in July 1997. X-rays of the lumbosacral spine taken in July 1997 were not in the claims file, but were described as showing moderately severe degenerative joint disease of the L4-L5 disc space; mild degenerative joint disease of the L2-L3, L3-L4, and L5-S1 disc space; and a mild compression fracture (old) at T12. The examiner stated that the etiology of the degenerative disc disease was most likely related to and aggravated by the hundreds of parachute jumps the veteran performed in the military. In addition, the claim file contains a statement written by John C. Mills, M.D., Colonel, U.S. Army Reserve. Dr. Mills, a specialist in Emergency Medicine and Orthopedic Surgery, stated that he was also highly trained as a parachutist with great expertise in treating soldiers of the Special Forces with medical injuries. He noted that serious injuries during parachute jumps were extremely common, and cervical and lumbosacral strains were so common that most soldiers did not mention them for fear of being removed from jump status. Dr. Mills explained that there was a typical medical picture of wear and tear and degenerative changes of the spine that was referred to as "jumper's spine" and was common among older parachutists. According to Dr. Mills, these degenerative changes may occur over many years, without any specific documented acute injury. Dr. Mills opined, that without a doubt, the veteran's line of duty activity, specifically the parachute jumping, contributed to the current degenerative spine disease and back problems. Furthermore, Dr. Mills was present in 1982 when the veteran injured his back, and that injury alone could have set the stage for degenerative changes later in life. Dr. Mills opined that the veteran should be granted service connection for his back disorder. Although the record includes medical evidence that the veteran's parachute jumping in the Reserves contributed to his degenerative spine disease and current back problems, this is not sufficient to satisfy the veteran's burden in this case. Because the veteran does not have veteran status during the periods in which his claim for service connection is founded, the veteran is not entitled to the benefit of reasonable doubt. See 38 U.S.C.A. § 5107(b); Laruan, 11 Vet. App. at 85. Since he has the burden of establishing veteran status for the period in which the claim is founded, he must establish by a preponderance of the evidence that the he was disabled during active duty for training or during inactive duty for training as a result of a back injury. The record, however, does not establish that the veteran was disabled during active duty for training or during inactive duty for training as a result of a back injury. Rather, it appears that the spinal degenerative changes which are currently disabling did not become manifest until after service and were not disabling during any period of active duty for training or inactive duty for training. The veteran has a most impressive military career spanning several decades and his testimony before the Board is credible. But the legal requirements for establishing veteran status on claims based on Reserve service simply do not contemplate service connection in cases where a disability, in this case degenerative disease of the spine, is not present during periods of Reserve service. Under the circumstances service connection for disability due to low back injury of the lumbar spine must be denied. Hearing loss The veteran has stated that from December 1964 to February 1987 he was an active participating member of several high power rifle marksmanship teams. During this period he was exposed to thousands of rounds of ammunition and had very little ear protection. The common practice was to use cigarette filters for ear protection as little else was provided. The veteran further testified in his June 1999 travel Board hearing that during Reserve duty once a year when he participated in heavy weapons training, including demolition, without ear protection. He stated that since retiring from the military he had led a normal life, without significant noise exposure. Service medical records from the veteran's period of Reserves duty do not contain any documentation of episodes of disease or injury to the ear. At a medical examination in November 1965, the veteran had hearing within the normal range on audiological testing. At an examination in April 1980, at the frequencies of 500, 1000, 2000, and 4000, the veteran had pure tone thresholds of 16, 10, 22, and 58 on the right and 14, 12, 12, and 12 on the left. At an examination in August 1986, at the frequencies of 500, 1000, 2000, 3000, 4000, and 6000, the veteran had pure tone thresholds of 15, 5, 5, 45, 35, and 5 on the right, and 5, 0, 5, 45, 35, and 50 on the left. An audiology examination was performed at a VA clinic in November 1995. Pure tone thresholds at 1000, 2000, 3000 and 4000 decibels were as follows: 30, 40, 60, and 60 on the right and 25, 35, 60 and 55 on the left. Speech recognition was 70 percent on the right and 72 percent on the left. A letter from Dr. Kazuo Teruya indicates that the veteran was examined in July 1997 for the purpose of determining the etiology of his hearing impairment. Dr. Teruya noted that the veteran reported his family complained about his hearing. He denied dizziness, had occasional tinnitus, and had no recent trauma to the head or ear. During the interview, the veteran behaved as though he had severe hearing loss. Examination showed no evidence of disease. Dr. Teruya reviewed records of past hearing tests and noted that the veteran's hearing was normal in November 1965, that it had begun to diminish at the high frequencies in April 1980, and that hearing was definitely diminished in August 1986 at 3,000, 4,000, and 6,000 decibels. A hearing test in [November] 1995 showed increased hearing loss, involving also the low frequencies. Dr. Teruya concluded that the veteran had a 1.9% hearing loss during his time in the Reserves from 1964 to 1987 based on the August 1986 evaluation. Further, the present hearing loss was the result of noise exposure and the aging process. Dr. Mills, who had served with the veteran in the Reserves, as previously noted, also commented on the veteran's hearing loss. He stated in his June 1999 letter that there was a well-documented relationship between multiple exposures to rifle fire with limited hearing protection over a period of years. Dr. Mills felt that the veteran's level of exposure and risks should substantiate his claim for benefits for hearing deficit. Finally, the claims file contains an article submitted by the veteran to the Board regarding hearing loss and its prevalence among soldiers. For purposes of a hearing loss claim, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 (1998). As with respect to the veteran's claim for service connection for a back disorder, he must show "veteran status" for the period in which he alleges the repeated noise exposure occurred. Thus, he must establish, by a preponderance of the evidence, that he was disabled from hearing loss while he was on active duty for training, or was disabled from hearing loss during a period of inactive duty for training due to acoustic trauma. Furthermore, it is not sufficient to show that the veteran had high frequency hearing loss when he underwent audiological testing in 1980 and 1986. As the veteran did not have veteran status for the periods he served in the Reserves, he is not entitled to the presumption of soundness. See Paulson, 7 Vet. App. at 470. Accordingly, it may not be presumed that the hearing loss documented on audiological testing was incurred coincident with the period of Reserve service during which the audiological testing was conducted. From the medical opinions, it appears that the veteran's hearing loss developed over time due to multiple exposures without hearing protection and the aging process without relation to trauma during the specific periods of Reserve duty when his hearing was tested, assuming those tests where conducted during periods of active or inactive duty for training. Absent the presumption of soundness, it is the claimant's burden to show medical evidence of an injury or disease occurring during active duty for training, or an injury during inactive duty for training that caused the hearing loss. As the service medical records do not contain any indication of an injury or disease of the ear causing hearing loss disability during any period of Reserve service when testing was conducted in November 1965 or August 1986, veteran status is not established. As the veteran is lacking veteran status for the period he served in the Reserves, his claim for service connection for hearing loss must be denied. Although the RO applied the procedural advantages of the well-grounded/duty to assist analysis and the benefit-of-the- doubt rule (which are not available unless a claimant first carries the initial burden of establishing status as a veteran for the Reserve duty periods on which the claim is based, Laruan v. West 11 Vet. App. at 84-85) in analyzing the veteran's claim and in the Statement of the Case, the veteran was not prejudiced by this analysis because he was simply afforded a more liberal standard of review than the law permits for claims based on Reserve service. ORDER The claim for service connection for degenerative disc disease/low back injury of the lumbar spine is denied. The claim for service connection for bilateral hearing loss is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals