Citation Nr: 18157007 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-44 356 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to acoustic trauma from an injury suffered during a period of inactive duty training (INACDUTRA). 2. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to acoustic trauma from an injury suffered during a period of INACDUTRA. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the National Guard from June 1962 to January 1991, including periods of ACDUTRA and INACDUTRA, to include a period of INACDUTRA from June 27, 1964 to July 11, 1964. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which denied service connection for hearing loss and tinnitus. The Veteran filed his notice of disagreement in December 2012, and in December 2014 was issued a statement of the case and perfected his appeal to the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term “active military, naval, or air service” includes active duty, and any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or an injury incurred or aggravated during INACDUTRA, but presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service under 38 U.S.C. §§ 316, 502, 503, 504, 505; 38 C.F.R. § 3.6 (c), (d); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends that he was exposed to acoustic trauma while on authorized pass from annual field training when 2 fellow unit members placed an explosive device in a restaurant bathroom which exploded while the Veteran was inside. The Veteran stated after the explosion he went on sick call. He also states that he was exposed to aircraft noise as a paratrooper, and noise from small arms fire and simulated munitions during training exercises over the course of his 29-year National Guard career. He contends that he has suffered from ringing in his ears since the initial injury and that he has also suffered loss of hearing due to the initial injury. The Veteran’s Report of Separation and Record of Service indicates the Veteran’s military occupational specialty (MOS) was as Military Police, Judge Advocate, and Inspector General. Service treatment records from July 1964 note the Veteran was treated for tinnitus in both ears, and a November 1964 Report of Investigation notes the Veteran was diagnosed with acoustic trauma due to an explosion in a confined area on July 4, 1964. The report also notes that the Veteran was engaged in INACDUTRA while serving with the Rhode Island Army National Guard, and at the time of the incident was absent with authority and was not engaged in intentional misconduct or neglect. There is no indication that this was state as opposed to Federal National Guard service. Therefore, the Veteran was engaged in authorized travel during a period of INACDUTRA when he was exposed to acoustic trauma, and his reports regarding in-service noise exposure are supported by service department records and consistent with his duties as a military police officer. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran’s May 1990 medical examination report prior to discharge notes normal hearing, but his May 1990 medical history report notes the Veteran has suffered hearing loss. The Veteran’s August 1990 audiological examination report during service notes pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 10 55 LEFT 0 5 0 60 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The Veteran’s wife stated that the Veteran has had tinnitus since they were married and the constant ringing increases or decreases depending on the time of day. She stated the level of tinnitus has increased due to the continuous firing of weapons, flying in military aircraft and exposure to munitions. October 2007 post-service private treatment records noted the Veteran’s history for tinnitus due to noise exposure in service and the physician stated the Veteran should anticipate communication difficulties and some adverse listening situations. The physician diagnosed presbycusis with high frequency hearing loss and bilateral tinnitus. The Veteran’s pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 20 50 LEFT 5 10 15 20 60 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. April 2010 post-service private treatment records note the Veteran complained of ringing in the ears after attending a rock concert. The physician diagnosed acoustic trauma resulting in an increase in tinnitus and left aural fullness. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 35 60 LEFT 5 15 10 55 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear. On the authorized audiological evaluation in August 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 50 70 LEFT 15 15 20 60 70 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service as audiograms from March 1983, May 1986 and May 1988 show hearing within normal limits. The examiner noted the hearing loss apparent in earlier examinations must have been due to temporary hearing loss. The examiner noted the Veteran’s complaints of tinnitus and opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss, but hearing loss is not likely related to service. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible evidence that he experiences tinnitus, and the above audiological examinations, personnel records and statements confirm an in-service injury and incurrence, and a current bilateral hearing loss disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The remaining issue is whether there is a nexus to military noise exposure for the current bilateral hearing loss and tinnitus. In this case, the Board does not find that the probative value of the August 2011 medical opinion outweighs the Veteran’s competent and credible reports regarding his bilateral hearing loss and tinnitus history. The examiner also did not take into consideration the Veteran’s reports of having suffered from hearing loss and ringing in his ears since the injury suffered on INACDUTRA when formulating his opinion. Therefore, the August 2011 opinion is afforded little probative weight. The Veteran has consistently stated that he has experienced hearing loss and ringing in his ears since the initial acoustic trauma from injury during INACDUTRA and there is no evidence of record which indicates the Veteran is not credible in this regard. The evidence is, thus, at least evenly balanced as to whether the Veteran’s current bilateral hearing loss disability and tinnitus are related to his injury from acoustic trauma during a period of INACDUTRA. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel