Citation Nr: 21029059 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-03 121 DATE: May 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran served on active duty from October 1977 to January 1978, and had periods of active duty for training (ACDUTRA) from March 1977 to July 1998. 2. Bilateral hearing loss has been continuous since service. CONCLUSION OF LAW Bilateral hearing loss was incurred during service. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal was previously remanded by the Board in May 2019. It has now been returned for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Only "veterans" are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a "veteran" a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service-connected disabilities from that period). However, for those who have achieved "veteran" status through a prior period of service and 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, 24 Vet. App. at 40. Hearing loss is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, hearing loss was noted in a January 2010 VA examination. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the 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. Testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 45 75 LEFT 30 25 35 40 45 Therefore, hearing loss is currently shown. Reports of his symptoms are also well-documented throughout the record. Thus, the first element of service connection a current diagnosis has been met. Next, the evidence supports a finding of in-service acoustic trauma. Specifically, the Veteran has repeatedly asserted that he was regularly exposed to mortar fire and gunfire in his tenure on the National Rifle Team. Indeed, periodic examinations during his ACDUTRA service reveal slight threshold shifts in his hearing, and the January 2010 VA examination noted mild hearing loss in 1981. A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran's statements are consistent with the nature of his service, during which he was member of the National Rifle Team, and handled armor and mortars as seen in his Military Personnel Records (MPRs). Further, there is no evidence of record which tends to contradict the Veteran's testimony. As such, the second element of service connection has been met. As to continuity, the Veteran has indicated that he has experienced issues hearing others since separation from service. While there is an absence of complaints or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board notes that the January 2010 VA examiner opined that an opinion could not be reached without resorting to mere speculation. However, the Veteran also submitted a private opinion in September 2013 which suggested an association. Additionally, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the "chronic" disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of "continuous" symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.