Citation Nr: 21003983 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-22 144 DATE: January 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDING OF FACT A bilateral hearing loss disability was not manifest during ACDUTRA. A bilateral hearing loss disability is unrelated to ACDUTRA. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by ACDUTRA. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty for training (ACDUTRA) from January 1967 to June 1967. 1. Entitlement to service connection for bilateral hearing loss disability Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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 between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes active duty, any period of active duty for training (ACDUTRA) 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 (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. Claims based on a period of ACDUTRA or INACDUTRA are not entitled to the presumptions outlined in 38 C.F.R. § 3.307 and § 3.309. Smith v. Shinseki, 24 Vet. App. 40 (2010). However, if such service becomes active service, the presumptions may apply. Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). “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 distinguished from merely isolated findings or a diagnosis including the word ‘Chronic.’ When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303(b). The appellant served on ACDUTRA and is not service-connected for any disability. The appellant is not a Veteran for VA compensation purposes. The appellant contends that he has hearing loss, which was caused by his service. He cites his work as an engineer equipment repairman as leaving him with a high probability of hazardous noise exposure. 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, 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. Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since then, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to convert ASA standards to ISO-ANSI standards, the Board must add (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; and (+5) at 4000 Hertz. At the February 21, 1966 enlistment examination, audiometric testing revealed the following when converted to ISO-ANSI standards: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 10 LEFT 25 20 20 15 15 At a June 7, 1967 examination, audiometric testing revealed the following in ISO-ANSI standards (unconverted from the service treatment records): HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 X 15 LEFT 15 10 10 X 10 The appellant underwent audiometric examinations upon enlistment, separation and during service. Audiometric testing during service does not document a hearing loss disability under 38 C.F.R. § 3.385 or any degree of hearing loss. There was no significant threshold shift in service. There were no relevant complaints, symptoms, treatment or diagnosis of hearing loss during service. Clinical evaluation of the ears upon separation was normal. A VA examiner assessed the hearing acuity via medical records in November 2019. The VA examiner concluded 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. The examiner stated “The physical that was documented during the separation process did not produce subjective or objective evidence regarding decrease in hearing acuity as the objective audiogram was within normal limits without significant threshold shifts per NIOSH standards and the subjective questions regarding hearing loss was answered as though no hearing loss was perceived at that time.” See Medical Opinion- Disability Benefits Questionnaire, dated November 14, 2019. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the November 2019 VA medical opinion that the   appellant’s bilateral hearing loss disability is less likely than not related to service as probative evidence on this point. The Board notes that the examiner rendered this opinion after reviewing the claims file and relevant medical records. The examiner noted the appellant’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Specific to the period of ACDUTRA from January 1967 to June 1967, bilateral hearing loss was not “noted” during service. Service treatment records do not show a combination of manifestations sufficient to identify the disease entity (organic disease of the nervous system), and sufficient observation to establish chronicity at the time. The audiometric tests were normal upon examination throughout ACDUTRA and upon separation. Notably, the presumptions associated with 3.303(b) do not apply to periods of either ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). Here, he is not service connected for any disability and his service is not active service. Bilateral hearing loss was not incurred in or aggravated during a period of ACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110. The Board has considered the lay statements of the appellant regarding his bilateral hearing loss disability. The appellant is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The appellant is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the appellant has not indicated that a medical professional provided him with a diagnosis of bilateral hearing loss during active service, or within a year of separation. More importantly, the opinion is consistent with the service records. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss disability. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, Associate 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.