Citation Nr: 21032695 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-41 900A DATE: May 27, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT It is at least as likely as not the Veteran's tinnitus began following an acoustic injury while on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) and that it has persisted ever since. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Texas Army National Guard from May 1969 to May 1976 and was called for his initial period of ACDUTRA from August 1969 to January 1970 before returning to the Texas Army National Guard to complete his remaining service obligations. This appeal to the Board of Veterans' Appeals (Board) is from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for tinnitus Active military, naval, or air service not only includes any period of active duty (AD) but also ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty or any period of INACDUTRA during which the individual concerned was disabled or died from injury though not also disease incurred in or aggravated in the line of duty or from acute myocardial infarction, cardiac arrest, or cerebrovascular accident during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). This typically refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the 12 four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To the extent this claimant is alleging that he has disability owing to an injury or a disease incurred or aggravated during his time in the Texas Army National Guard, he must first establish his status as a "Veteran" in connection with that service and then that he was disabled from disease or injury incurred or aggravated in the line of duty during that service, such as while on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of any such evidence, the period of service 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 person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits 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 or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). In the service-connection context, the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to AD do not apply to ACDUTRA or INACDUTRA. 38 U.S.C. §§ 1111, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). There also is no presumption of aggravation for ACDUTRA and INACDUTRA service, as there is for AD. The Veteran contends that he suffers from tinnitus owing to his service. He points out that his military occupational specialty (MOS) was infantryman and that he consequently routinely was exposed to hazardous noise from gunfire, grenade launchers, and detonators while on ACDUTRA and INACDUTRA. Because of the inherent nature of his service, especially in that responsibility, noise exposure in service and consequent injury (acoustic trauma) is conceded. 38 U.S.C. § 1154(a) and (b); 38 C.F.R. § 3.304(d). He also credibly asserts that he has experienced tinnitus "constantly and increasingly" since his qualifying 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). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. Moreover, as noise exposure and consequent injury (acoustic trauma) during his service has been conceded, the Board finds his competent statements regarding his tinnitus also are credible and, therefore, ultimately probative. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board acknowledges the opinion of the June 2016 VA examiner that the Veteran's tinnitus was less likely than not caused by his service. But the Veteran also has competently and credibly reported that he began experiencing tinnitus in service and that it has persisted since. Accordingly, after resolving all reasonable doubt concerning this in his favor, service connection for tinnitus is being granted. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. Like his tinnitus, the Veteran contends that he also has bilateral (left and right ear) hearing loss because of the acoustic trauma in service. The June 2016 VA examiner confirmed the Veteran has sufficient hearing loss in each ear to be considered a ratable disability for VA compensation purposes meaning sufficient hearing loss in each ear to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. But, just as in the case of the tinnitus, there also must be attribution of this bilateral hearing loss disability to his service such as to the acoustic trauma he cites as the cause or source of it. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Regarding this determinative issue of causation, the June 2016 VA examiner ultimately determined that the Veteran's bilateral hearing loss is not related to his service she he only reported hearing loss beginning 10 years prior to that examination so in 2006 or thereabouts and also because he did not experience hearing loss while in service. The Board finds this opinion inadequate, however, as the Veteran reports that his hearing loss began in service and has continued "constantly and increasingly" since then. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records (STRs) to provide a negative opinion). Additionally, the examiner apparently did not consider an audiogram in service appearing to suggest hearing loss (unfortunately, the exact date of the audiogram is only partially legible, and it is unclear exactly what year the audiogram was done). As the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained, a threshold loss greater than 20 decibels indicates hearing loss, even if insufficient to meet the requirements of § 3.385 to be considered a ratable disability for VA compensation purposes. Moreover, the Veteran need not have had sufficient hearing loss while in service, or even sensorineural hearing loss within a year of his separation from service, satisfying the requirements of this VA regulation, as long as he now does and has the required attribution of his hearing loss to his service, as opposed to other ("intervening") factors or causes. See Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection is permissible for a disease initially diagnosed after discharge from service if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). See also Ledford v. Derwinski, 3 Vet. App. 87 (1992). Accordingly, supplemental medical comment is needed considering the Veteran's lay statements regarding chronicity of symptoms as well as this potential in-service audiogram possibly showing hearing loss. Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for another appropriate VA examination for more comment on the nature and etiology of his claimed bilateral hearing loss particularly in terms of whether related or attributable to a qualifying period of active military service. To assist in making this determination, all pertinent symptomatology and findings must be reported, and all indicated diagnostic tests and studies accomplished. The claims file must be made available to the examiner for review and consideration of the relevant medical and other history, including his lay statements and a complete copy of this remand. After reviewing the relevant evidence of record, including the Veteran's lay statements STRs, the examiner is asked to indicate in response whether the Veteran's claimed bilateral hearing loss is as likely as not related to or the result of his service including from exposure to loud noise and consequent injury (acoustic trauma). When responding, whether favorably or unfavorably, the examiner must provide rationale, preferably citing to evidence in the record supporting conclusions and/or accepted medical authority. If, as the prior June 2016 VA examiner concluded, there is no such thing as "delayed-onset" hearing loss, there must be more explanation of why this is not a viable possibility. Moreover, if the audiogram from service apparently not previously considered suggest hearing loss in service, there must be reconciliation with any contrary finding. If the examiner ultimately cannot provide the requested etiology opinion without resorting to mere speculation, this not only must be so stated expressly but, as importantly, the examiner must provide the reasons why an opinion would require speculation. As examples, the examiner must indicate whether there was any further need for information or testing necessary to make a determination, whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.