Citation Nr: 1335812 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-21 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1969. He also served in the National Guard from May 1974 to May 1998. This matter comes before the Board of Veterans' Appeals Board on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. FINDINGS OF FACT 1. Bilateral hearing loss disability is related to service. 2. Tinnitus is related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the fully favorable decision contained herein, discussion of the duties to notify and assist is not necessary. The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus, as he believes that he developed these disorders due to noise exposure during his periods of active and/or reserve service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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 addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As an organic disease of the nervous system, which includes sensorineural hearing loss, is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, 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 line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a), (d). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to Veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991)(Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. As noted above, while organic diseases of the nervous system, which includes sensorineural hearing loss, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service, this presumption does not apply to periods of ACDUTRA and INACDUTRA. See 38 U.S.C.A. § 1112. Therefore, with respect to whether this chronic disability manifested within one year of separation, this presumption does not apply to the Veteran's periods of ACDUTRA or INACDUTRA. 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 results of the December 2010 VA examination show that the Veteran has hearing loss that meets these criteria. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI standards. In this case, the Veteran was tested in September 1967, upon entrance into service, and the results must be converted. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. As noted above, the Veteran demonstrated hearing loss that is at a disabling level for VA purposes. In addition, he has complained of tinnitus, a symptom that he is competent to report. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In addition, the evidence shows that the Veteran's Military Occupational Specialty was Boat's Mate, where he states he was exposed to 3-inch guns. The Veteran is competent to testify to the noise exposure he experienced. The Board finds the Veteran's statement regarding his service and duties credible, as they match his listed Military Occupational Specialty. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). VA has conceded that the Veteran had noise exposure from 3-inch guns on his boat during his active service. Therefore, there is competent and credible evidence of in-service noise exposure. There are several opinions of record as to whether the Veteran's hearing loss disability and tinnitus are related to service. Those are the opinions of the Veteran, his private physician, and the VA examiner. In this case, the Board finds that the opinion provided by the Veteran's private physician in August 2012 is at least as probative as the opinion provided by the VA examiner. While there is no evidence that the Veteran's private physician reviewed the service records, the Board finds that the history provided to his physician was consistent with those records and his overall medical history. In addition, the Veteran's private family physician likely knows about and understands the Veteran's regular occupation and considered this information when rendering his opinion. The private opinion provided in August 2012 included a discussion of the Veteran's history and the kind of noise exposure he experienced during both active and reserve service. He attributed at least some of the Veteran's hearing loss to his noise exposure during service. The Board finds that this opinion is at least as probative as the other opinions of record. As such, service connection for bilateral hearing loss disability and tinnitus are granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs