Citation Nr: 21030871 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-52 034 DATE: May 19, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDING OF FACT 1. The appellant has been shown to have current bilateral hearing loss that is at least as likely as not related to noise exposure during a qualifying period of service in the North Dakota Army National Guard. 2. The appellant has been shown to have tinnitus that is at least as likely as not related to noise exposure during a qualifying period of service in the North Dakota Army National Guard. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the North Dakota Army National Guard from February 1954 to August 1961 and in the Oregon Army National Guard from August 1961 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied the appellant's claim for entitlement to service-connected compensation because he did not have active military service to qualify for VA compensation. The appellant testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript of the hearing is of record. The Board remanded the case in July 2019 and November 2020 for further development. The case has since been returned to the Board for appellate review. Law and Analysis Initially, the Board notes that special rules apply to service connection claims based on National Guard and Reserve service. In order establish "veteran" status for the purpose of receiving VA benefits, a claimant must have served on active duty, or become disabled or died from a disease or injury incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 38 U.S.C. § 101(2), (24). To establish basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, the claimant must have been ordered into Federal service by the President of the United States, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, 505. See Allen v. Nicholson, 21 Vet. App. 54, 58, 2007; see also 10 U.S.C. § 12401; see also 38 U.S.C. §§ 101(21), (22)(C). In relevant part, 32 U.S.C. § 502 provides for participation in training encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year, and 32 U.S.C. § 503 provides generally for participation in field exercises. In this case, the appellant's service personnel records were obtained from the North Dakota Army National Guard. A Retirement Credits Record documents that the appellant performed full-time duty (or ACDUTRA) as a member of the North Dakota Army National Guard during the month of June every year from 1955 through 1961. See NGB Form 23. The appellant has reported he participated in field exercises during that time, and his statements are supported by his Retirement Credits Record generally documenting 15 days of ACDUTRA every June. See 32 U.S.C. §§ 502, 502. The appellant has also reported that he served as a demolition man and a combat engineer in the North Dakota Army National Guard. See also August 2013 VA Form 21-4138; see also NGB Form 22 (documenting that he served as a demolition man from February 1954 through February 1957 and as a combat engineer from February 1957 through February 1960). In May 2018, the appellant indicated that he was exposed to a large demolition explosion during one of the two-week summer training exercises. He has stated this his unit was conducting training on building and blowing up bridges. See August 2013 VA Form 21-4138. The appellant reported that there was approximately 500 pounds of TNT explosives remaining after the period of instruction, which the unit blew up in a single explosion. He noted that he lost his hearing for two to three days following the explosion. The appellant further reported that he sought treatment from an Army medic the day after the explosion and was advised that he had a ruptured ear drum. See April 2014 VA Form 21-4142. The appellant's service treatment records further document that he underwent a reenlistment medical examination in August 1961. Although the August 1961 medical examination report noted that an audiological evaluation was "not indicated" on clinical evaluation, the provider did note that the appellant's ears and ear drums were abnormal. Notably, the provider indicated that his ears drums were injured due to service performed on the rifle range and with explosives. The appellant has reported he was attending college during the timeframe he served in the North Dakota Army National Guard and that he realized his hearing was permanently damaged after the explosion because he had to sit at the front of the class to be able to hear the instructors after the incident. See May 2018 VA Form 21-0820. The appellant indicated that he noticed a decrease in his hearing acuity every year following the explosion. See April 2014 VA Form 21-4142. In July 2012, the appellant submitted a private audiological report. The audiologist took a history from the appellant as to the progression of his loss of hearing acuity. The appellant reported that he first noticed his hearing loss in the military. He noted that he served as a combat engineer, rifle range instructor, and a demolitions instructor. The appellant also reported that the remaining ordinance was destroyed after a demolition class. The appellant stated that he noticed his ears were bleeding and that he had a high pitch ringing in both ears after the explosion. He also indicated that he has continued to experience constant tinnitus since the explosion in service. The appellant reported that he worked as a teacher and an athletic coach following his military service. The audiologist opined that the appellant's current bilateral hearing loss and tinnitus are more likely than not the result of hazardous noise exposure in the military. The appellant was also afforded a VA hearing loss and tinnitus examination in May 2018 during which he reported some noise exposure during drill weekends and during summer National Guard training. The examiner noted his 25-year history of being a high school woodshop teacher without the use of hearing protection. The examiner opined that it was less likely than not that the appellant's hearing loss is related to military noise exposure. The examiner also found that the appellant did not have a current diagnosis of tinnitus, as the condition had resolved. In this case, the Board finds the evidence of record is at least in equipoise as to whether the appellant's current bilateral hearing loss is related to noise exposure during qualifying periods of full-time duty in the North Dakota Army National Guard. Although the May 2018 VA examiner noted that he reported "some noise exposure during drill weekends and during summer training," the examiner did not appear to consider or discuss the August 1961 medical examination report indicating that his ears and ear drums were abnormal due to noise exposure from firing ranges and explosives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). The appellant is competent to report that he experienced decreased hearing following a significant explosion during a training exercise and that he experienced such symptoms continuously following the incident. Moreover, his report is supported by the August 1961 medical examination report. Additionally, the Board finds the evidence of record is at least in equipoise as to whether the appellant has a current diagnosis of tinnitus that is related to noise exposure during qualifying periods of full-time duty in North Dakota Army National Guard. The Court has held that tinnitus is a condition is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board acknowledges that the May 2018 VA examiner indicated the appellant did not have a current diagnosis of tinnitus at the time of examination, as the condition had resolved. However, the requirement of current disability is satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The May 2018 VA examination finding that the appellant does not have a current diagnosis of tinnitus is inconsistent with the other evidence of record in which he has reported that he continued to experience ringing in his ears following the explosion during a training exercise in the North Dakota Army National Guard to the present. Resolving reasonable doubt in favor of the appellant, the Board finds that entitlement to service connection for bilateral hearing and tinnitus is warranted. In reaching this determination, the Board assigns weight to the appellant's competent and credible reports of decreased hearing and ringing in the ears following an explosion during full-time duty for a National Guard training exercise, the August 1961 medical examination report indicating that his ears and ear drums were abnormal due to exposure to noise from firing ranges and explosives, and the July 2012 private audiologist opinion that his current bilateral hearing loss and tinnitus are more likely than not the result of noise exposure in the military. Accordingly, the Board finds that entitlement to status as a veteran for VA compensation purposes is established, and service connection for bilateral hearing loss and tinnitus is granted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.