Citation Nr: 21071269 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-50 630 DATE: November 30, 2021 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 The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Air Force from March 1971 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran presented testimony before a Veterans Law Judge (VLJ) in January 2020. The transcript of the Board hearing has been associated with the Veteran's electronic claims file. The VLJ who conducted the hearing is no longer employed by the Board. In July 2021, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication from the Veteran, the Board will proceed with adjudicating the claims. The Veteran did not submit any correspondences within 30 days of the date of the letter. Thus, the Board will proceed with adjudicating the Veteran's claims. In February 2021, the Board, in pertinent part, remanded the issue on appeal for further development. The issue 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, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, VA 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. Entitlement to service connection for bilateral hearing loss is granted. In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss. He asserts that his bilateral hearing loss was caused by in-service noise exposure. At the outset, the Board notes that the Veteran has already been service connected for tinnitus based on in-service noise exposure. As such, in-service acoustic trauma is 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, the Veteran is currently diagnosed with bilateral hearing loss. See April 2021 VA examination report. Therefore, the first element of service connection has been met. Next, as previously indicated, in-service acoustic trauma has been conceded, as the Veteran's service-connected tinnitus is based on in-service noise exposure. As such, because in-service noise exposure has been established, 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. During the January 2020 hearing, the Veteran testified that he first noticed his hearing loss during 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). Finally, as to nexus, on examination in August 2016 and April 2021, the VA examiners were unable to provide a nexus between the Veteran's hearing loss and service because the Veteran's service treatment records were negative for hearing loss. Notably, in February 2021, the Board deemed the August 2016 opinion to be inadequate. While the record does not include a medical opinion that indicates a nexus between the Veteran's hearing loss with service, the Board does not need to reach the weight assignable to any medical 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, in light of the Veteran's conceded noise exposure in service and the fact that the Veteran has already been awarded service connection for tinnitus based on in-service noise exposure, the Board finds that service connection for bilateral hearing loss is warranted. 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. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.