Citation Nr: 21028254 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 21-00 433 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is attributable to his military service. 2. The Veteran's bilateral tinnitus disability is attributable to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Naval Reserve from October 1952 to July 1955, and in the Army National Guard from July 1955 to July 1958, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during his periods of service. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) September 2018 rating decision of the Agency of Original Jurisdiction (AOJ). In April 2020 the Board dismissed the Veteran's claim due to lack of jurisdiction over the claims. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2020, the Court, pursuant to a Joint Motion for Remand (JMR), remanded the case back to the Board for further action. Specifically, the Court directed the Board to allow the Veteran the opportunity to cure procedural and jurisdictional defects. In the time since the December 2020 JMR, the Veteran has properly perfected his appeal to the Board. The Board finds that the procedural and jurisdictional defects have been cured by the Veteran, and his claims are now properly before the Board. As a preliminary matter, the Board notes that the record indicates that the Veteran's service treatment records (STRs) were destroyed in a fire. The Board acknowledges VA's heightened duty to assist a claimant where records are deemed fire-related or otherwise lost. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Service Connection 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 the 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 the 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. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve Veteran status for purposes of that claim. See 38 U.S.C. § 101 (2)-(24). 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 "by the President of the United States, see 10 U.S.C. § 12401, or that his duty was performed under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, see 38 U.S.C. §§ 101 (21), (22)(C), (23)." The Full-time duty must be under 38 U.S.C. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c), (d); Key v. Nicholson, 21 Vet. App. 54 (2007). Hence, for the Veteran's service in the National Guard, only periods of active duty service, federalized National Guard service, or ACDUTRA/INACDUTRA period would qualify for the purpose of VA compensation benefits. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, the majority of the Veteran's military personnel records, as well as his STRs, were destroyed. However, his surviving personnel records show periods of ACDUTRA and INACDUTRA between at least 1953 and 1958. A May 1956 "Active Duty Report" shows that the Veteran was on active duty for a portion of that month. An undated National Guard Retirement Credits Record shows periods of "active duty or active duty training" in August 1955, May 1956, August 1956, and August 1957. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss, and tinnitus will be presumed to have been incurred in or aggravated by service if manifested to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or 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 service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is caused by his military service. Hearing loss disability is defined by regulation. 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. 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may 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). The Veteran contends that he was exposed to acoustic trauma while on active duty. The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire." American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran's surviving personnel records show that he was awarded commendations for marksmanship. In an August 2018 Statement in Support of Claim, the Veteran noted that he was "involved in shooting competitions" while serving. The Board concedes acoustic trauma as the Veteran's written statements establish that he was exposed to weapons firing while on active duty as part of his involvement in shooting competitions. In an April 2021 VA Form 9, the Veteran stated that he "went to the medical officer" while in-service to explain that he "was not able to hear for 3 days after a shooting session." As noted above, the majority of the Veteran's STRs were destroyed. The Board finds that the Veteran's testimony is credible, and he is able to report symptoms he experienced such as reduced hearing capacity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The surviving STRs show clinically normal hearing. An October 1952 enlistment examination shows no hearing difficulties upon entry into military service. An examination from March 1954 found no damage to the structure of the Veteran's ears, nor did the Veteran report any hearing difficulties at that time. In April 2018 the Veteran was seen by a VA audiologist to determine the etiology and severity of his hearing loss disability. The results of the examination are as follows: HERTZ 500 1000 2000 3000 4000 CNC Right 40 60 95 105+ 105+ 28% Left 40 55 80 90 105+ 22% As the lowest auditory threshold, in any frequency, is 40 decibels, and the Veteran's speech recognition scores are 28 percent and 22 percent in the right and left ears, respectively, the Veteran meets the statutory requirements for a hearing loss disability in both ears. Based on the examination, and the Veteran's testimony regarding his in-service use of firearms, the examiner found that "it is as least as likely as not" that the Veteran's hearing loss is "due to his military noise exposure." The Board finds that the probative medical evidence on record establishes that the Veteran's current bilateral hearing loss disability is caused by his active duty military service. The Board finds that the criteria for establishing service connection for bilateral hearing loss have been met. Accordingly, the Board resolves all reasonable doubt in the Veteran's favor, and service connection is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. At 54. 2. Entitlement to service connection for tinnitus The Veteran claims that his tinnitus is caused by, or due to, his military service. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Therefore, by definition, it is inherently subjective. As such, the Veteran is competent even as a layman to say he has had it during service and since. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the question is not so much whether the Veteran is competent to say he had and continues to have this condition, rather, whether his lay testimony concerning this also is credible to, in turn, ultimately have probative value in establishing this as fact. The April 2018 VA examination found that there was no diagnosis of tinnitus. However, in his May 2018 correspondence, the Veteran explained at length the history of his recurrent tinnitus since his inservice time on the firing range and in shooting competitions. (Continued on the next page) Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, and in affording the Veteran all reasonable doubt, the Board finds that the lay evidence, as both competent and credible, establishes that tinnitus had its initial onset during service, continued thereafter, and is still present. The latest VA opinion indicated that tinnitus may occur following a single exposure to high-intensity impulse noise. The Veteran has reported more than a single instance, but, in any event, his history is consistent with the development of tinnitus. Accordingly, and in affording all reasonable doubt, service connection for bilateral tinnitus is warranted. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.