Citation Nr: 21065030 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-35 106 DATE: October 22, 2021 ORDER Service connection for RIGHT ear hearing loss disability is granted. Service connection for LEFT ear hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran has current bilateral ear hearing loss disability for VA compensation purposes. 2. The evidence of record is equally balanced on whether the Veteran's RIGHT ear hearing loss disability is the result of hazardous noise exposure from machine gunfire, tank shells, cannon fire, and tank engine noise in his military occupational specialty (MOS) as a tank commander, armored crewman, tank system mechanic, and gunner during periods of ACDUTRA and INACDUTRA in the California Army National Guard from 1980 to 1989. 3. The Veteran is already service connected for tinnitus due to the same hazardous noise exposure above from his service in the California Army National Guard from 1980 to 1989. In particular, the Agency of Original Jurisdiction (AOJ) already determined the Veteran's tinnitus was the result of a live fire exercise with a 105mm cannon that caused his helmet to be blown off his head during a two-week period of ACDUTRA training in June 1986. 4. The veteran is noted to have entered his initial period of ACDUTRA in May 1980 with a preexisting LEFT ear hearing loss disability. The evidence of record is equally balanced on whether there was a permanent worsening of the Veteran's LEFT ear hearing loss disability beyond its natural progression during his periods of ACDUTRA and INACDUTRA in the Army National Guard from 1980 to 1989. Stated another way, his LEFT ear hearing loss disability was permanently aggravated by hazardous noise exposure from machine gunfire, tank shells, cannon fire, and tank engine noise during his Army National Guard service from 1980 to 1989. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria have been met for service connection for RIGHT ear hearing loss disability. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309, 3.385. 2. Resolving all reasonable doubt in his favor, the criteria have been met for service connection for LEFT ear hearing loss disability. 38 U.S.C. §§ 101, 1101, 1111, 1112, 1113, 1131, 1137, 1153, 1154, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an initial period of active duty for training (ACDUTRA / boot camp) with the California Army National Guard from May 1980 to August 1980. Thereafter, for a nine-year period from August 1980 to May 1989, he continued to serve with the California Army National Guard, with periods of ACDUTRA and inactive duty for training (INACDUTRA). In fact, during a 2-week period of annual summer training (ACDUTRA) from June 14, 1986 to June 28, 1986, veteran status has already been established due to the incurrence of service-connected tinnitus. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. §§ 3.1(d), 3.6(a); Hill v. McDonald, 28 Vet. App. 243, 251-53 (2016). This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2016 rating decision issued by an AOJ of the Department of Veterans Affairs (VA). In November 2018 and June 2021, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ attempted to comply with the Board's most recent remand order. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). A. RIGHT Ear Hearing Loss The Veteran contends he developed a right ear hearing loss disability as the result of hazardous noise exposure during Army National Guard service from 1980 to 1989. Specifically, he asserts that he was exposed to hazardous noise while serving in the California Army National Guard from 1980 to 1989, as the result of his MOS duties over a nine-year period as a tank commander, armored crewman, tank system mechanic, and gunner. His DD Form 214, NGB Form 22, and National Guard personnel records confirm that he did serve in these capacities. In particular, he indicates his MOS duties in the National Guard exposed him to hazardous noise from machine gunfire, tank shells, cannon fire, and tank engines. During a June 1986 two-week period of ACDUTRA, a live fire exercise with a 105mm cannon caused his helmet to be blown off his head - an incident for which he sustained acoustic trauma and has already been awarded service connection for tinnitus by the AOJ. Oftentimes, he did not wear hearing protection during his National Guard service, except when on the firing range. He reports that he noticed his first symptoms of right ear hearing loss during his National Guard service from 1980 to 1989, gradually worsening over time post-service. Post-National Guard service, he denies any work-related hazardous noise exposure as a civilian, but recreationally, he admits that he mowed his lawn without hearing protection. Post- National Guard service, he reports that he avoided seeing doctors for his hearing loss or other medical conditions, such that there are no treatment records for same. See November 2015 Application for Compensation (VA Form 21-526EZ); February 2016 NOD (VA Form 21-0958); July 2016 VA Form 9; August 2016 and September 2021 representative statements; and January 2018 Veteran statement. As discussed above, the Veteran's right ear hearing loss claim stems from hazardous noise exposure that occurred during periods of ACDUTRA and INACDUTRA with the California Army National Guard from 1980 to 1989. His ACDUTRA service included an initial period of "boot camp" training from May 1980 to August 1980. Thereafter, his ACDUTRA service consisted of annual two-week trainings each year from 1980 to 1989. His INACDUTRA service consisted of the regular, once-a-month weekend drills attended by guardsmen from 1980 to 1989. He maintains that his jobs as a tank commander, armored crewman, tank system mechanic, and gunner during his periods of ACDUTRA and INACDUTRA regularly exposed him to the firing of machine guns, tanks, and tank engine noise on the gun range and in training exercises. Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). Before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a "veteran," or (2) "veteran" status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) (en banc). A "veteran" is defined as "a person who served in the 'active' military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty or 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 the line of duty while performing ACDUTRA. The term "active military, naval, or air service" also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude a period of INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90 (July 18, 1990). However, for purposes of the incurrence of hearing loss or tinnitus during a period of ACDUTRA and INACDUTRA service, the term "injury" has been interpreted to include acoustic trauma. See VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 8-2001 (Feb. 26, 2001) (emphasis added). Under internal VA protocols, service connection for hearing loss and / or tinnitus can be established for ACDUTRA / INACDUTRA if either condition can be linked to an "injury" during ACDUTRA / INACDUTRA as shown by the nature of service, the claimant's MOS, lay evidence, or other competent evidence. For purposes of hearing loss or tinnitus during ACDUTRA / INACDUTRA, the MOS or other evidence establishing noise exposure serves as the "injury" during ACDUTRA / INACDUTRA required for service connection. The adjudicator should review the entire evidentiary record for noise exposure to ascertain both in-service and post-service exposure to hazardous noise and acoustic trauma. The National Guard or Reserve service records should also be reviewed for auditory threshold shifts (i.e., a decrease in auditory acuity) during National Guard or Reserve service, although these audiograms do not need to meet the hearing loss criteria under 38 C.F.R. § 3.385 during National Guard or Reserve service. 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). 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(23); 38 C.F.R. § 3.6(d). 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). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA, unless "veteran" status is attained during those periods. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Lay statements alone cannot be used to establish "veteran" status. See Venturella v. Gober, 10 Vet. App. 340 (1997). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). But according to VA standards, impaired hearing will only be considered 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 these frequencies 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. In the present case, the Veteran's sensorineural hearing loss (an "organic disease of the nervous system") is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. Service connection for certain enumerated diseases, such as sensorineural hearing loss (organic disease of the nervous system), may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Upon review of the evidence of record, the Board grants the appeal for service connection for RIGHT ear hearing loss disability. As to the first requirement for a service-connection claim, there is clear proof of a current disability for RIGHT ear hearing loss. See 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In fact, in Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Specifically, an October 2019 VA audiology examination revealed RIGHT ear sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. This was established by way of pure tone thresholds of 40 decibels or greater at various frequencies in the right ear and a speech discrimination score of less than 94 percent in the right ear. Thus, the existence of a current disability is undisputed for RIGHT ear hearing loss. As to the second requirement of an in-service injury, the Department of Defense's Duty MOS Noise Exposure Listing indicates that the Veteran's in-service MOS duties as a tank commander, armored crewman, tank system mechanic, and gunner in the Army National Guard all involved a "high" probability of noise exposure during service. His National Guard personnel records dated from 1980 to 1989 confirm he was exposed to hazardous noise from machine gunfire, tank shells, cannon fire, and tank engine noise. On this basis, there is a qualifying event, injury, or disease that had its onset during the Veteran's Army National Guard service. Therefore, hazardous noise exposure during his periods of ACDUTRA and INACDUTRA with the Army National Guard from 1980 to 1989 is consistent with the places, types, and circumstances of the Veteran's duties in the Army National Guard. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). As to the second requirement of in-service incurrence, Army National Guard treatment records dated from 1980 to 1989 are negative for any complaint, treatment, or diagnosis of RIGHT ear hearing loss disability under § 3.385. Moreover, at all his reports of medical history (in May 1980, March 1984, and May 1988) during his Army National Guard service, the Veteran denied any history of hearing loss or auditory symptoms. However, it is noted that the Veteran's May 1988 California Army National Guard quadrennial audiogram revealed hearing threshold levels at 20 decibels at all frequencies in the right ear - see Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (higher threshold levels above 20 decibels may indicate some degree of hearing loss) thus, he was extremely close to having "diminished" hearing upon separation from the Army National Guard. As to the second requirement of in-service incurrence, moreover, there is documentation of a significant decibel increase during his National Guard service in the RIGHT ear in pure tone thresholds at 500Hz, 1000Hz, 2000Hz, 3000Hz, and 4000Hz. This significant decibel increase is observed when comparing a baseline May 1980 Army National Guard enlistment audiogram with a November 1984 Army National Guard quadrennial audiogram and a final May 1988 Army National Guard quadrennial audiogram. The significant threshold shifts ranged from a 5dB to a 20dB permanent increase at all frequencies for the RIGHT ear. This significant threshold shift is an important factor for incurrence of acoustic trauma, even if this threshold shift failed to demonstrate hearing loss disability under § 3.385 in the RIGHT ear during his National Guard service. Hensley, 5 Vet. App. at 159-60. In short, this significant threshold shift in his right ear after nine years of hazardous noise exposure during his National Guard service lends probative support to the RIGHT ear hearing loss claim on appeal. In fact, the August 2020 VA audiology opinion also emphasized that there was a 15dB threshold shift in various frequencies in the right ear during his National Guard service from 1980 to 1989, despite the Veteran not having a hearing loss disability under § 3.385 in the RIGHT ear during his National Guard service. In any event, the Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Therefore, the lack of evidence of RIGHT ear hearing loss disability per § 3.385 or any hearing loss complaints for the RIGHT ear during his Army National Guard service is not fatal to the Veteran's hearing loss claim; rather, it is merely one factor to be considered. As to the third requirement of a nexus, post-service, the claims file contains a mix of favorable and unfavorable medical opinions on whether there is a nexus or link between the Veteran's current RIGHT ear hearing loss disability and his confirmed hazardous noise exposure during his periods of ACDUTRA and INACDUTRA service in the Army National Guard from 1980 to 1989. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). With regard to the favorable evidence, the Board has considered an October 2015 hearing loss and tinnitus DBQ (VA Form 21-0960N-5) from a private physician (a FAA Senior Aviation Medical Examiner). He opined that the Veteran's RIGHT ear hearing loss is "at least as likely as not" caused by or the result of his military noise exposure from tank noise and gunfire from 1980 to 1989 in the Army National Guard. He provided little to no rationale for his medical opinion. It appears his medical opinion was not based on a review of the Veteran's claims file or any relevant National Guard records. Although this favorable private medical opinion has various flaws, it still concluded there was a nexus or link between the Veteran's current RIGHT ear hearing loss disability and his confirmed hazardous noise exposure during his service in the Army National Guard. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Thus, a nexus to service was established. On this point, the VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits). With regard to the favorable evidence, the Board has considered the favorable opinion of the August 2020 VA audiology examiner. This VA audiologist only provided a medical opinion based on a review of the record but did not actually examine the Veteran. The August 2020 VA audiology opinion emphasized that there was a 15dB threshold shift in various frequencies in the RIGHT ear during the Veteran's National Guard service from 1980 to 1989, including periods of INACDUTRA, despite the Veteran not having a hearing loss disability under § 3.385 in the RIGHT ear during his National Guard service. With regard to the somewhat favorable evidence, a January 2016 VA audiology examiner found that he could not provide a medical opinion regarding the etiology of the Veteran's RIGHT ear hearing loss without resorting to speculation due to poor test reliability, inconsistent responses, differences between bone conduction and air conduction thresholds, and a positive Stenger test for the left ear. This VA examiner could not determine the extent the Veteran's RIGHT ear hearing loss was associated with his National Guard noise exposure due to poor reliability and the amount of change in his hearing that has occurred since leaving service in 1989. This VA examiner correctly provided an explanation for why his medical opinion was based on speculation that meets the test in Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). An equivocal or speculative medical opinion may still be competent and cannot be considered "non-evidence." Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008). But an etiological opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, it is significant the January 2016 VA audiology examiner was unwilling to rule out service connection for the Veteran's right ear hearing loss disability. With regard to the favorable evidence, the Board sees that an October 2019 VA audiology examiner recorded some pre-National Guard service noise exposure (before 1980), as the Veteran worked in lath and plaster in the construction industry. There is no evidence this pre-service noise exposure affected his right ear. Post-service, as a civilian after 1989, no work-related noise exposure was noted, although the Veteran did report that he mowed his lawn without hearing protection. No familial history of hearing loss in the Veteran's family was mentioned. In summary, there is no clear, post-service, intercurrent explanation for the Veteran's gradual worsening of his RIGHT ear hearing loss in the years after his 1989 separation from his service in the Army National Guard. See 38 C.F.R. § 3.303(b). With regard to the favorable evidence, post-service, it is significant to the Board's present adjudication of his RIGHT ear hearing loss that the AOJ in a September 2020 rating decision already granted the Veteran service connection for tinnitus. This award was based on the confirmed in-service hazardous noise exposure for the Veteran during a two-week period of ACDUTRA training in June 1986, in which a live fire exercise with a 105mm cannon caused his helmet to be blown off his head. See also October 2019 VA audiology examination. This tinnitus award was based on the same confirmed in-service hazardous noise exposure discussed above for the Veteran in the Army National Guard in 1986. Conversely, with regard to the negative evidence, the Board has considered the unfavorable opinion of the October 2019 VA audiology examiner. This VA examiner opined that the Veteran's RIGHT ear hearing loss was "less likely than not" (less than 50 percent probability) the result of in-service acoustic trauma during ACDUTRA or INACDUTRA training while in the Army National Guard. The rationale was that there were no medical records provided that indicated the Veteran had hearing loss in his RIGHT ear at entrance to or exit from the Army National Guard. Moreover, the configuration of his current audiogram was not indicative of acoustic trauma. Finally, there were no permanent positive threshold shifts from 500Hz to 6000Hz during his National Guard service (this finding is clearly inaccurate as a latter August 2020 VA audiology examiner established that there were significant threshold shifts from 1980 to 1989 in the Veteran's RIGHT ear during his Army National Guard service). The Court has held on a number of occasions that a medical opinion premised upon an inaccurate factual premise or an unsubstantiated account is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board is not required to accept a medical opinion that is unsupported by clinical findings. Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" and medical history in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, with regard to the negative evidence, the Board has considered the unfavorable opinion of the July 2021 VA audiology examiner. This VA examiner opined that the Veteran's RIGHT ear hearing loss was "less likely than not" (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was partly based on the oft-cited 2006 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, which assessed that there are no scientific studies on humans supporting delayed onset noise-induced hearing loss. The only studies conducted showing delayed onset noise-induced hearing loss were conducted on rats, but not humans. The VA examiner cited other medical treatise evidence for the proposition that generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. Moreover, other medical treatise evidence advised that "hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes." Any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc., would have to be considered in addition to his military noise exposure. "Many factors contribute to age related hearing loss including genetic predisposition and medical conditions." The VA examiner concluded that although noise exposure for this Veteran is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on military noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. As such, a nexus to National Guard service was not established for the Veteran's RIGHT ear hearing loss disability. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an "approximate" balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of the positive and negative evidence on the issue of service connection for RIGHT ear hearing loss disability. Certain elements of both the positive and negative medical opinions and clinical evidence of record in this case are probative. All of the medical opinions and clinical evidence have their respective flaws as well. But there is no apparent basis for wholly rejecting the favorable medical opinions of record. In light of the contrasting, yet equally probative medical opinions and clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran's favor. The Federal Circuit Court recently emphasized that under 38 U.S.C. § 5107(b) and under its previous holding of Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch, 999 F.3d at 1394. In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy. Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense. There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence. The fact finding of the Board in this case is entitled to deference and is not clearly erroneous. To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder. Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). Accordingly, resolving doubt in the Veteran's favor, service connection for RIGHT ear hearing loss disability incurred during periods of ACDUTRA and INACDUTRA in the California Army National Guard from 1980 to 1989 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. LEFT Ear Hearing Loss The Veteran contends that he had preexisting LEFT ear hearing loss disability that was aggravated by the same hazardous noise exposure discussed in great detail above during his Army National Guard service from 1980 to 1989. See September 2021 representative statement. That is, as discussed above, the Veteran's LEFT ear hearing loss claim stems from hazardous noise exposure that occurred during periods of ACDUTRA and INACDUTRA with the California Army National Guard from 1980 to 1989. His ACDUTRA service included an initial period of "boot camp" training from May 1980 to August 1980. Thereafter, his ACDUTRA service consisted of annual two-week trainings each year from 1980 to 1989. His INACDUTRA service consisted of the regular, once-a-month weekend drills attended by guardsmen from 1980 to 1989. He maintains that his MOS duties as a tank commander, armored crewman, tank system mechanic, and gunner during his periods of ACDUTRA and INACDUTRA regularly exposed him to the firing of machine guns, tanks, and tank engine noise on the gun range and in training exercises. He believes this hazardous noise exposure permanently worsened his preexisting LEFT ear hearing loss beyond its normal progression from 1980 to 1989. See again September 2021 representative statement. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. See 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also VAOPGCPREC 3-2003 (July 16, 2003). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Notwithstanding the peacetime provisions of 38 U.S.C. § 1132, the wartime provisions of 38 U.S.C. § 1111 shall be applicable in the case of any veteran who served in the active naval service after December 31, 1946, such as the current Veteran in the present case. See 38 U.S.C. § 1137. However, the analysis is different in a case where the preexisting condition was noted upon entry into service. "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In such claims where a preexisting condition was noted at entry, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153. With regard to the existence of a preexisting LEFT ear hearing loss disability, a May 1980 California Army National Guard enlistment examination prior to the Veteran's initial period of ACDUTRA service revealed LEFT ear hearing loss disability. This was according to the clear, established requirements of 38 C.F.R. § 3.385. This disability was established by way of pure tone thresholds of 40 decibels at 1000Hz and 50 decibels at 4000Hz in the LEFT ear. In hearing loss cases, a veteran is entitled to the presumption of soundness only if no hearing loss "disability," as defined in 38 C.F.R. § 3.385, was present at the time of entrance examination. See McKinney v. McDonald, 28 Vet. App. 15, 21-29 (2016). In the present case, LEFT ear hearing loss disability under 38 C.F.R. § 3.385 was clearly noted upon entrance into his initial period of ACDUTRA service at the above May 1980 California Army National Guard enlistment examination. Also, at the same May 1980 enlistment examination, the Veteran's PULHES "physical capacity or stamina" profile under the "H" category for "hearing and ear" assigned a "2" (indicative of limitations necessitating assignment restrictions). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Normally at this juncture, since his LEFT ear hearing loss disability was noted at the time of the Veteran's entrance into service, the Veteran would not be entitled to the presumption of soundness for his LEFT ear hearing loss when entering his initial period of ACDUTRA training. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, normally, the presumption of soundness would have been rebutted here. However, no presumptions (including the presumptions of soundness and aggravation) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Moreover, even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 4546 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 4546. In addition, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a latter period of ACDUTRA (or INACDUTRA), even if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Smith, 24 Vet. App. at 4546; Paulson, 7 Vet. App. at 471. In the present case, a May 1980 California Army National Guard enlistment audiology examination was afforded to the claimant prior to his initial period of ACDUTRA training from his May 1980 to August 1980. Nonetheless, the Veteran did not have any period of active service prior to this initial period of ACDUTRA service from May 1980 to August 1980, even though an audiology entrance examination occurred upon entrance into this initial period of ACDUTRA. Smith, 24 Vet. App. at 4546; Paulson, 7 Vet. App. at 471. As such, the presumption of soundness cannot attach here to the Veteran's initial period of ACDUTRA from May 1980 to August 1980, absent a prior period of active service. It is immaterial that the claimant subsequently established "veteran" status for a latter June 1986 period of ACDUTRA based on a grant of service connection for tinnitus incurred during this latter June 1986 period of ACDUTRA. Hill v. McDonald, 28 Vet. App. 243, 251-253 (2016). In this regard, "veteran" status is not disability specific, but rather can be viewed as ACDUTRA or INACDUTRA period specific. Id. Thus, only the equipoise standard (benefit of the doubt) is required to establish the preexistence of the Veteran's LEFT ear hearing loss disability prior to his initial period of ACDUTRA service from May 1980 to August 1980. See 38 U.S.C. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a); Paulson, 7 Vet. App. at 469. In this regard, as already discussed above, preexisting LEFT ear hearing loss disability under 38 C.F.R. § 3.385 was clearly noted upon entrance into his initial period of ACDUTRA service at the May 1980 California Army National Guard enlistment examination. The preexistence of the Veteran's LEFT ear hearing loss disability before entrance into his initial period of ACDUTRA service from May 1980 to August 1980 is therefore undisputed. In this vein, the Veteran's representative has asserted that the Veteran's LEFT ear hearing loss disability preexisted and was then aggravated beyond its normal progression by hazardous noise exposure his periods of ACDUTRA and INACDUTRA in the Army National Guard from 1980 to 1989. See September 2021 representative statement. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). See also 38 U.S.C. § 101(24)(B): In such instances, the claimant is not entitled to the easier presumption of aggravation standard unless he or she has "veteran" status for that particular period of ACDUTRA or INACDUTRA. Hill, 28 Vet. App. at 251-52. See also 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Rather, the standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on the matter of in-service aggravation of the preexisting condition. Donnellan, 24 Vet. App. at 174. See also 38 U.S.C. §§ 101(24), 5107; 38 C.F.R. § 3.102. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. The Court in Donnellan noted that the placement of the burden of proof on the claimant was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Id. The Court has further held that a "permanent" increase in severity is required to establish "aggravation" of a preexisting disability. Ward v. Wilkie, 31 Vet. App. 233, 239-42 (2019) (emphasis added). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare up, without more, does not satisfy the level of proof required of a non combat veteran to establish an increase in disability). That is, there must be an increase in the underlying disability during service becoming symptomatic during service is not sufficient unless this occurred in combat. Davis, 276 F.3d at 1344-45. Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997). It follows that the remaining question in the present case, for purposes of establishing service connection for the left ear, is whether there was permanent aggravation of the Veteran's preexisting LEFT ear hearing loss disability beyond its natural progress, caused by his periods of ACDUTRA and INACDUTRA in the Army National Guard from 1980 to 1989. Donnellan, 24 Vet. App. at 174. Again, VA must apply the "benefit of the doubt" standard when determining whether aggravation is established. Id. Stated succinctly, neither the presumption of soundness nor the presumption of aggravation applies here for the LEFT ear hearing loss disability issue on appeal instead the "benefit of the doubt" standard applies. Here, there is an approximate balance of the positive and negative evidence of record as to whether there was a permanent worsening of the Veteran's preexisting LEFT ear hearing loss disability beyond its natural progression during his periods of ACDUTRA and INACDUTRA in the Army National Guard from 1980 to 1989. Donnellan, 24 Vet. App. at 174. See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With regard to the favorable evidence in support of aggravation of his preexisting LEFT ear hearing loss disability, there is clinical documentation of a significant decibel increase during his Army National Guard service in the LEFT ear in pure tone thresholds at 500Hz, 1000Hz, and 2000Hz. This significant decibel increase is established when comparing a baseline May 1980 Army National Guard enlistment audiogram with a subsequent May 1988 Army National Guard quadrennial audiogram. The significant threshold shifts ranged from a 10dB to a 15dB permanent increase at three frequencies for the LEFT ear from 1980 to 1988. Specifically, the initial May 1980 Army National Guard enlistment audiogram demonstrated pure tone thresholds in the LEFT ear at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 15, 40, 10, x, and 50 decibels, respectively. As already analyzed above, this established LEFT ear hearing loss disability under 38 C.F.R. § 3.385 that preexisted his entrance into his initial period of ACDUTRA service in May 1980. Eight years later, after experiencing hazardous noise exposure and confirmed acoustic trauma during various periods of ACDUTRA and INACDUTRA from 1980 to 1988 as part of his Army National Guard duties, a May 1988 California Army National Guard quadrennial audiogram demonstrated pure tone thresholds in the LEFT ear at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 25, 55, 25, 20, and 25 decibels, respectively. The clinical evidence above demonstrates significant auditory shifts from 1980 to 1988 during Army National Guard duty in pure tone thresholds at frequencies of 500Hz, 1000Hz, and 2000Hz, as well threshold levels above 40 decibels at 1000Hz. See 38 C.F.R. § 3.385. The Court has held that a significant decibel increase in pure tone thresholds during service is an important factor for in-service incurrence (or aggravation), even if these shifts fail to demonstrate in-service hearing loss disability under § 3.385. Hensley, 5 Vet. App. at 159-60. Furthermore, the Court in Hensley added that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. In the present case, California Army National Guard audiograms from 1980 to 1988 revealed significant auditory shifts in pure tone thresholds at frequencies of 500Hz, 1000Hz, and 2000Hz in the left ear, as well threshold levels at 500Hz and 2000Hz that increased from below 20 decibels to above 20 decibels (thus, a movement from no hearing loss to diminished hearing at these frequencies). The Court in Hensley further held that where VA's Rating Schedule does not provide a comprehensive basis for a Board determination as to whether a measured worsening of a preexisting condition in a particular case constitutes an "increase in disability" under section 1153, evidence of record might clearly establish that there has been an "increase in disability" for purposes of establishing aggravation of a preexisting condition under section 1153, even though it is not clear that such increase would have resulted in an increased rating under VA's Rating Schedule provisions for that particular disability. Id. at 163. That is, the concept of aggravation of a preexisting condition applies where there was a worsening of the condition in service, regardless of whether the degree of worsening was enough to warrant compensation under VA's Rating Schedule. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). With regard to the favorable evidence in support of aggravation of his preexisting LEFT ear hearing loss disability, a January 2016 VA audiology examiner found that the Veteran had hearing loss prior to entrance into service in May 1980. The VA audiologist opined that the Veteran's preexisting right [sic] ear hearing loss was aggravated beyond it's normal progression by service. (It can be reasonably inferred the VA audiologist mixed up the right and left ears the VA audiologist was actually describing aggravation of the Veteran's preexisting LEFT ear hearing loss disability). The rationale for this opinion was that hearing tests indicated that the Veteran's hearing decreased in his left ear during his nine years of Army National Guard service. Therefore, in the present case, independent medical evidence of record supports a finding that the preexisting LEFT ear hearing loss increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Conversely, with regard to the negative evidence against aggravation of his preexisting LEFT ear hearing loss disability, the Board has considered the unfavorable opinions of the October 2019 and August 2020 VA audiology examiners. The October 2019 VA audiologist assessed that his preexisting LEFT ear hearing loss disability was not aggravated beyond its natural progression during his Army National Guard service. The rationale provided was that there were no medical records that showed hearing at entrance or exit from the military. There were no permanent positive threshold shifts from 500Hz to 6000Hz during active duty. (Thus, it appears the VA audiologist did not have access to the relevant Army National Guard audiograms from 1980 to 1988, diminishing the probative weight of this negative opinion). An August 2020 audiology examiner acknowledged the existence of threshold shifts from 1980 to 1988; but regardless, he determined that the Veteran's LEFT ear hearing loss disability was not aggravated beyond its natural progression during his Army National Guard service. Thresholds at certain frequencies in the left ear actually improved by 1988, as pointed out by this August 2020 VA audiologist, while thresholds at other frequencies decreased. Here, there is an approximate balance of the positive and negative evidence on the issue of service connection for LEFT ear hearing loss disability by way of aggravation of a preexisting disability. Certain elements of both the positive and negative medical opinions and clinical evidence of record in this case are probative. All of the medical opinions and clinical evidence have their respective flaws as well. But there is no apparent basis for wholly rejecting the favorable medical opinions of record. In light of the contrasting, yet equally probative medical opinions and clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran's favor for the left ear hearing loss. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Federal Circuit Court recently emphasized that under 38 U.S.C. § 5107(b) and under its previous holding of Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch, 999 F.3d at 1394. Accordingly, resolving doubt in the Veteran's favor, service connection for preexisting LEFT ear hearing loss disability that was aggravated during periods of ACDUTRA and INACDUTRA in the California Army National Guard from 1980 to 1989 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.