Citation Nr: 18142961 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 13-25 446A DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW Hearing loss was incurred in service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from January 1972 to October 1975. In January 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In August 2017, the Board of Veterans’ Appeals (Board), in pertinent part, remanded the instant claim on appeal to the local Regional Office (RO) for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2018. The matter has returned to the Board. Service Connection Generally, to establish service connection, a Veteran must show: “(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 or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to direct service connection, service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately question and there are continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, the Department of Veterans Affairs is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. At the outset, the Board notes that the Veteran is already service connected for tinnitus. The Board emphasizes that “high frequency tinnitus usually accompanies [noise-induced] hearing loss.” The MERCK Manual, Section 7, Ch. 85, Inner Ear. In this case, the Veteran seeks entitlement to service connection for hearing loss. He asserts that his hearing loss is a result of acoustic trauma sustained in active service. As the Veteran has already been granted service connection for tinnitus based upon hazardous noise exposure in service, exposure to hazardous noise has been conceded. 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). First, on VA examination in December 2011, the Veteran was diagnosed with hearing loss. VA examination reports dated February 2015 and August 2017 show that the Veteran continues to suffer from a diagnosed bilateral hearing loss disability. Thus, the first element of service connection has been met. Next, the evidence supports a finding of in-service acoustic trauma. The Veteran’s service personnel records reflect that his military occupational specialty (MOS) was a fire control technician, which involved working with explosives and guns. Throughout the period on appeal, the Veteran has consistently and unvaryingly indicated that in his capacity as a fire control technician, he was constantly around loud noises with no hearing protection. See September 2011 claim. During the January 2017 hearing, the Veteran testified that as a fire control technician, he was in charge of the weapons, storage unit, and the weapons small arms locker. He indicated that his main job was maintaining the fire control radar on the ship for the gun system. See January 2017 Board Hearing Transcript at 4. As a result of his duties, he was in proximity to the sound as guns were fired. He was not provided hearing protection. See id. at 5. The Veteran further testified that Titan rockets went off during general quarters, right alongside of him. See id. at 7. The Board finds that the Veteran is competent to testify on factual matters of which he has firsthand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, acoustic trauma has been conceded, and service connection for tinnitus secondary to acoustic trauma has been awarded. Therefore, the second element of an in-service incurrence has been met. Next, as to continuity, the Veteran has indicated that he has experienced hearing loss since service. While there is an absence of complaints of 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 August 2017 VA examiner was unable to provide a nexus between the Veteran’s hearing loss and service. However, 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. Furthermore, due the fact that the Veteran is already service connected for tinnitus based on the same in-service noise exposure, the Board finds that the Veteran’s hearing loss cannot be reasonably dissociated from his military service. 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. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel