Citation Nr: 0809781 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 03-32 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active military service from September 1965 to September 1969. Service personnel records in the veteran's claims file verify his status as a combat veteran, specifically his receipt of the Combat Action Ribbon. See 38 U.S.C.A. § 1154(b) (West 2002). This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for peripheral neuropathy and confirmed a previous denial of service connection for bilateral hearing loss. In February 2004, the veteran had an informal conference with a Decision Review Officer (DRO) at the RO. In a March 2005 decision, the Board reopened the veteran's claim for entitlement to service connection for bilateral hearing loss and then denied service connection for bilateral hearing loss as well as peripheral neuropathy. The appellant appealed the March 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was filed in December 2005. In a January 2006 Order, the Court vacated the March 2005 Board decision and remanded these matters to the Board for readjudication. Thereafter, in June 2006, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development. After completing the requested actions, the RO continued the denials of service connection for the veteran's claimed hearing loss and peripheral neuropathy disabilities (as reflected in the November 2007 supplemental SOC (SSOC)), and returned the case to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. In a January 1987 rating decision, the RO denied the veteran's claim for service connection for hearing loss; although notified of the denial, the veteran did not initiate an appeal. 3. Evidence received since the January 1987 rating decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 4. The veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 5. Right ear hearing loss was noted on entrance examination and was clearly and unmistakably shown not to be aggravated by service. 6. Current left ear hearing loss is not shown to be related to events incurred during active service, including combat noise exposure. 7. Service in the Republic of Vietnam has been verified; and exposure to an herbicide agent is presumed. 8. Peripheral neuropathy, to include due to herbicide exposure, is not shown to be of service origin; acute or subacute peripheral neuropathy was not manifested to a compensable degree within one year of the date of last possible exposure on active military service, nor is any current peripheral neuropathy related to any incident of service. CONCLUSIONS OF LAW 1. The RO's January 1987 denial of service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. As evidence received since the RO's January 1987 denial is new and material, the criteria for reopening the veteran's claim for service connection for bilateral hearing loss are met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2006); 38 C.F.R. § 3.156(a) (2007). 3. Bilateral hearing loss was not incurred or aggravated in service, nor may service incurrence of a sensorineural bilateral hearing loss be presumed. 38 U.S.C.A. §§ 1110, 1112, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.385 (2007). 4. Peripheral neuropathy, to include acute and subacute peripheral neuropathy due to herbicide exposure, was not incurred in or aggravated by service nor may peripheral neuropathy be presumed to have been incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1116 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's petition to reopen his claim for service connection for bilateral hearing loss and claim for entitlement to service connection for peripheral neuropathy were both received in July 2002. He was notified of the provisions of the VCAA by the RO and AMC in correspondence dated in October 2002 and June 2006. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in October 2007. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in June 2006. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. A review of the October 2002 and June 2006 VCAA notice letters shows the RO and AMC identified the basis for the denial in the prior decision and provided notice that described what evidence would be necessary to substantiate that element or elements required to establish service connection for hearing loss that were found insufficient in the previous denial. The Board finds the notice requirements pertinent to the issue on appeal addressed in this decision have been met. The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records, private treatment records, and all relevant VA treatment records pertaining to his claimed disabilities have been obtained and associated with his claims file. He has also been provided with VA medical examinations to address the etiology of his claimed hearing loss and peripheral neuropathy disabilities. Furthermore, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. New and Material Evidence In November 1986, the veteran filed a claim for service connection for hearing loss. In a January 1987 rating decision, the RO denied the veteran's claim, noting that the veteran's hearing loss was not incurred in or aggravated by service. Evidence of record included the veteran's service treatment records; statements from the veteran; an October 1986 private audiological evaluation from Dr. Bytell; and a December 1986 VA audio examination report. Although notified of the January 1987 denial, the veteran did not initiate an appeal of this determination. As such, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The veteran attempted to reopen his claim for service connection for hearing loss in July 2002. This appeal arises from the RO's April 2002 rating decision that reopened the veteran's claim and denied entitlement to service connection for hearing loss on the basis that the veteran's hearing loss pre-existed service and was not shown to have been aggravated during service. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2007). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). In this case, the last final denial of the claim was the January 1987 RO rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence added to the claims file since the January 1987 denial includes additional statements from the veteran, VA treatment records, private treatment records, a July 2002 statement from a private audiologist, and VA examination reports dated in March 2003, April 2007, June 2007, and July 2007. VA and private medical records detailed findings of hearing loss. A July 2002 statement, a private audiologist opined that the veteran's hearing loss started during service, had become progressively worse, and was indicative of noise exposure. VA examination reports dated in March 2003, April 2007, June 2007, and July 2007 reflected findings of a current bilateral hearing loss disability under 38 C.F.R. § 3.385. In April 2007, the examiner noted that the claims folder was not available for review, and declined to render an opinion as to the etiology of the hearing loss. In a June 2007 VA examination report, the examiner opined that it was as likely as not that the veteran's hearing loss were the result of factors other than acoustic trauma during military service. In addition, in the July 2007 VA examination report, the examiner diagnosed of bilateral hearing loss and opined that the veteran's current hearing loss was not the result of military noise exposure but most likely an aggregation of the pre-existing loss, the effects of civilian occupational noise exposure, and presbycusis. This evidence is new in that it was not previously before agency decision makers at the time of the January 1987 decision, and is not cumulative or duplicative of evidence previously considered. This evidence is material, as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, i.e., the relationship between the veteran's claimed current hearing loss with noise exposure during active service. Consequently, this evidence raises a reasonable possibility of substantiating the veteran's claim for service connection for hearing loss. Under these circumstances, the Board concludes that the claim for entitlement to service connection for bilateral hearing loss must be reopened and re-adjudicated on the merits. Service Connection General Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality". The determination as to whether evidence establishes that a veteran engaged in combat with the enemy must be resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. See VAOGCPREC 12-99 (Oct. 18, 1999). Pertinent case law also provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, organic diseases of the nervous system may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2007). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). In July 2003, VA's General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Intermittent or temporary flare-ups during service of a pre- existing injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently--is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. §3.385 (2007). The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307, 3.309 (2007); 38 U.S.C.A. § 1116 (West 2002 & Supp. 2006). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Acute and subacute peripheral neuropathy shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, if the disease becomes manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii) (2007). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Bilateral Hearing Loss The veteran contends he is entitled to service connection for bilateral hearing loss incurred as a result of noise exposure during active service. Service treatment records reflect that the veteran underwent a pre-induction examination in August 1965. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 (30) 45 (35) 45 (35) 80 (70) 85 (80) LEFT 45 (30) 30 (20) 35 (25) 35 (25) 30 (25) It was noted he had defective hearing that was not considered disqualifying. (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the right of each column and are in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, in order to facilitate data comparison, the ASA standards (in parentheses) have been converted to ISO-ANSI standards. In a February 1967 examination pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 35 75 LEFT 25 30 30 35 30 It was noted on the report that ISO standards were used, thus, no conversion of the data is necessary. On whispered and spoken voice testing, he had 15/15, bilaterally. In September 1969, the veteran underwent a separation examination. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 65 75 LEFT 30 25 30 25 25 It was noted he had bilateral hearing loss which was not considered disqualifying. Private medical records from Dr. Bytell dated in the October 1986 reflect impaired bilateral hearing. In November 1986, the veteran filed a claim for VA benefits. He indicated he had been a mechanic and a helicopter gunner during service. He further noted that his current hearing loss was due to helicopter "frequency vibrations". He related that his hearing loss had been gradual and that he did not realize the extent of the loss until a September 1969 examination (which was conducted at discharge). A December 1986 VA examination report shows that the veteran reported that he had hearing trouble since being a Marine. He said his last military examination reflected he had a hearing loss which he did not have when he entered. He said he had progressively worsening hearing loss. On December 1986 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 35 40 45 75 85 61 LEFT 30 35 30 40 45 38 Speech audiometry revealed speech discrimination ability of 94 percent in the right ear and 96 percent in the left ear. It was concluded that the veteran had mild to moderately severe sensorineural hearing loss in the left ear at 500-8000 Hertz, and mild to profound sensorineural hearing loss in the right ear at 500-8000 Hertz. Private medical records, dated in 1996 and 1998, show the veteran received treatment for hearing problems. An undated statement received in October 2002 from a private audiologist, E. Bohannon, reflects that the veteran first had hearing loss during his tour in Vietnam. It was noted that noise from the rotors of helicopters caused his hearing loss. It was opined that hearing loss started during service and had become progressively worse. It was noted that the configuration of the veteran's hearing loss was indicative of noise exposure. On March 2003 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 50 60 70 80 95 76 LEFT 50 55 65 65 80 66 Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and 100 percent in the left ear. It was concluded that the veteran had mild sloping to profound hearing loss in the right ear and mild sloping to severe hearing loss in the left ear. Speech discrimination was described as excellent. On April 2007 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 55 55 70 75 90 73 LEFT 45 50 60 55 60 56 Speech audiometry revealed speech discrimination ability of 94 percent in the right ear and 94 percent in the left ear. The examiner listed a diagnosis of right ear moderately severe sensorineural hearing loss from 500-1000 Hz, sloping to severe from 2000-3000 Hz, and profound at 4000 Hz. Left ear sensorineural hearing loss was noted to moderate at 500- 1000 Hz and sloping to moderately severe from 2000-4000 Hz. In a June 2007 addendum to the April 2007 VA audiological examination, the examiner indicated that she had received and reviewed the claims file. It was further noted that the claims file indicated that the veteran entered military service with hearing loss in both ears that was listed as not considered disabling as well as showed that the veteran's bilateral hearing loss was essentially unchanged between the time of entrance into service and separation in 1969. The examiner also noted that the veteran had reported 15 years of civilian occupational noise exposure, working on an assembly line. Thereafter, the examiner opined that it was as likely as not that this veteran's hearing loss was the result of factors other than acoustic trauma during military service. On July 2007 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 55 65 85 85 105 85 LEFT 55 60 65 60 65 63 Speech audiometry revealed speech discrimination ability of 94 percent in the right ear and 94 percent in the left ear. The examiners, listed as two audiologists, diagnosed right ear moderately severe sensorineural hearing loss from 500- 1000 Hz, sloping to severe from 2000-3000 Hz, and profound at 4000 Hz. Left ear sensorineural hearing loss was noted to moderate at 500-1000 Hz and sloping to moderately severe from 2000-4000 Hz. The examiners opined that the veteran's current hearing loss was not the result of military noise exposure but most likely an aggregation of the pre-existing loss, the effects of civilian occupational noise exposure, and presbycusis. Rationale to support this opinion included the fact that the veteran's service treatment records documented that there was no significant change in hearing occurred from the pre-existing hearing loss shown at the time of enlistment until separation from service as well as because no scientific evidence supports delayed onset of noise-induced hearing loss. The veteran's service personnel records reflect that he served as a helicopter mechanic. He is also in receipt of decorations that are indicative of combat service in Vietnam, to include the Combat Action Ribbon. The Board accepts as credible the veteran's assertion of noise exposure in service as consistent with his established combat service. See 38 C.F.R. § 1154(b) (West 2002). Audiological findings of record also clearly show that the veteran has a bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. That notwithstanding, considering the pertinent evidence of record in light above- noted legal authority, the Board finds that the record presents no basis for a grant of service connection for bilateral hearing loss, as further explained below. Right Ear Hearing Loss In this case, competent medical evidence of record shows that the veteran is not entitled to the presumption of soundness, as veteran's right ear hearing loss was shown to pre-exist entry into active service. While service medical records indicate that the veteran was examined and accepted for active duty, defective hearing under 38 C.F.R. § 3.385 was noted on his August 1965 enlistment examination report. Further, in the June and July 2007 VA medical opinions, the examiners indicated, after a review of the claims file, that the veteran's hearing loss pre-existed service. In an October 2002 statement, a private audiologist opined that the veteran's hearing loss started during active service. This finding is clearly not supported by the medical evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value.) The statement also does not address whether the veteran's right ear hearing loss existed prior to his entry into service or whether it was aggravated during service beyond the natural progress of the disease. The Board finds this medical statement to be entitled to little probative value compared to the June and July 2007 VA medical opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In addition, the October 2002 private audiologist opinion is not shown to have been based on a review of the veteran's claims file. See Elkins v. Brown, 5 Vet. App. 474, 478 (rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant document that would have enabled him to form an opinion on service connection on an independent basis). Competent medical evidence of record also clearly and unmistakably establishes that the veteran's right ear hearing loss was not aggravated by his period of active service. In the June and July 2007 VA examination reports, the examiners repeated note that a review of the veteran's service treatment records showed that the veteran's hearing loss essentially remained unchanged during active service. In the July 2007 VA examination report, the examiner further indicates that the veteran's hearing loss is not the result of military noise exposure but most likely an aggregation of the pre-existing loss, the effects of civilian occupational noise exposure, and presbycusis. Based on the foregoing, the Board finds that there is clear and unmistakable evidence that the veteran's right ear hearing loss pre-existed service and was not aggravated during active service. Consequently, entitlement to service connection for right ear hearing loss is not warranted. Left Ear Hearing Loss The veteran's service medical records reveal that his hearing acuity of the left ear was consistently "normal" during active service, including at his August 1965 entrance examination and his September 1969 separation examination. It is noted that elevated findings were noted on a February 1967 audiometric examination; however, such findings are isolated. The first post-service medical evidence of left ear hearing loss was in 1986, over 15 years after his service discharge. More current medical evidence, including March 2003, April 2007, and July 2007 VA examination reports, establishes a current hearing loss disability of the left ear for VA purposes under 38 C.F.R. § 3.385. However, persuasive and probative medical evidence of record does not show that there is a medical relationship or nexus between current the veteran's current left ear hearing loss and events during active service, including combat noise exposure. As in the aforementioned claim, the Board must conclude that the October 2002 opinion from a private audiologist, which relates current hearing loss to service, is based on an inaccurate factual premise and medical history. As discussed in detail above, that opinion is of limited probative value. By contrast, the opinions provided by examiners in a June 2007 VA examination addendum and in July 2007 VA examination report are considered to be more probative on this issue. These VA examiners provided detailed opinions concerning the etiology of the veteran's hearing loss after thoroughly reviewing the veteran's claims file, as well as conducting an interview with, and evaluation of the veteran. In a June 2007 addendum to the April 2007 VA audiological examination, the examiner noted that the veteran had reported 15 years of post-service occupational noise exposure and opined that it was as likely as not that this veteran's hearing loss was the result of factors other than acoustic trauma during military service. In the July 2007 VA examination report, examiners opined that the veteran's current hearing loss was not the result of military noise exposure but most likely an aggregation of the pre-existing loss, the effects of civilian occupational noise exposure, and presbycusis. Thereafter, the examiners explained their opinions and supported them with references to the record. Based on the foregoing, the Board finds competent medical opinion evidence addressing the etiology of the veteran's current left ear hearing loss weighs against the claim. Consequently, entitlement to service connection for left ear hearing loss is not warranted. Peripheral Neuropathy The veteran contends he is entitled to service connection for peripheral neuropathy incurred as a result of herbicide exposure during active service. Service treatment records reflect that the veteran's neurological system was marked as normal in an August 1965 pre-induction examination, a February 1967 examination, and a September 1969 separation examination. A January 1987 VA compensation examination report also reflects findings of a normal neurological system. Private medical records from Dr. Downey, dated from 2000 and 2003, reflect that the veteran was diagnosed with and treated for peripheral neuropathy, sensory-axonal type, and neuropathic pain. A June 2002 VA Agent Orange registry clinic note reflects that the veteran was diagnosed, 2 years earlier, as having peripheral neuropathy by Dr. Downey. It was noted that the private physician had issued a statement indicating that the veteran had peripheral neuropathy of a sensory-axonal type. Following an examination, the impressions included peripheral neuropathy. A November 2002 VA treatment note reflects that the veteran had peripheral neuropathy secondary to Agent Orange exposure. An examination was not conducted. In an April 2007 VA examination report and June 2007 addendum report, the veteran complained of numbness and paresthesias in his legs that began in the 1970s. Physical examination findings revealed decreased sensation in the lower extremities, symmetric reflexes with preserved knee and ankle jerks, some hair loss on the distal aspects of his lower extremities, and somewhat antalgic ambulation related to chronic right lower back pain. Nerve conduction velocity and electromyography (NCV/EMG) study findings dated in May 2007 revealed evidence of bilateral abnormal H-reflexes as well as bilateral medial and plantar sensory nerve lesions and were noted to be consistent with some bilateral sensory neuropathy. However, the examiner specifically indicated that he could not definitely say and that it was impossible for him to say whether the veteran's current neuropathy was related to Agent Orange exposure or not in this veteran. It is acknowledged that the veteran had Vietnam service and exposure to Agent Orange is to be presumed. While acute and subacute peripheral neuropathy is a disability for which presumptive service connection is allowed according to 38 C.F.R. § 3.309(e), there is no competent medical evidence of these conditions within a year of exposure to Agent Orange. Service treatment records show no complaints or findings of acute and subacute peripheral neuropathy, nor are these disabilities documented within one year following the veteran's last known exposure to herbicide agents. Rather, his neurological system was consistently normal during active duty. The claims file shows that he was first diagnosed as having peripheral neuropathy in 2000, several decades after his service discharge. Further, to the extent the veteran has asserted peripheral neuropathy has been present since service, the medical evidence is wholly against this assertion, as the first medical documentation is over 25 years after service. VA has also specifically determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for chronic persistent peripheral neuropathy. The basis for the conclusion is the analysis of countless scientific studies reviewed by the National Academy of Science (NAS). See Notice, 68 Fed. Reg. 27630-27641 (2003). Thus, the preponderance of the evidence is against a finding that there was acute or subacute peripheral neuropathy manifest to a compensable degree within a year of the date of last possible exposure in service. Therefore, service connection for peripheral neuropathy is not warranted on a presumptive basis as due to Agent Orange exposure. The Board will proceed to evaluate the veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. As noted above, service treatment records do not show that the veteran had any findings, diagnoses, or treatment of peripheral neuropathy during active service. Objective medical findings of peripheral neuropathy are first shown many years after separation from active service. The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, persuasive and probative medical evidence of record also does not show that there is a nexus or medical relationship between the veteran's peripheral neuropathy diagnosed post-service and his presumed in-service herbicide exposure. It is acknowledged that there is a November 2002 VA outpatient treatment record that reflects that the veteran has peripheral neuropathy which is secondary to Agent Orange exposure. However, the basis for this statement is entirely unclear as an explanation and examination findings were not provided. The probative value of this opinion is diminished by the fact that the conclusion is not supported by any medical rationale. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical possibilities and unsupported medical opinions carry negligible probative weight). Significantly, the examiner also did not indicate that he had reviewed any of the veteran's records in rendering his opinion. See Elkins v. Brown, 5 Vet. App. 474, 478 (rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant document that would have enabled him to form an opinion on service connection on an independent basis). By contrast, the Board finds the most probative evidence to be the medical opinion rendered by the VA examiner the April 2007 VA examination report with June 2007 addendum. The examiner provided a detailed opinion concerning the etiology of the veteran's peripheral neuropathy after thoroughly reviewing the veteran's claims file, as well as conducting an interview with, and evaluation of the veteran. Based on such review, the VA examiner opined that he could not definitively say that the veteran's current neuropathy was related to Agent Orange exposure or not. The Board finds that the probative value of the VA examiner's April and June 2007 opinions far outweighs the unsupported notation found in a November 2002 VA medical record. Considering the evidence of the record in light of the governing legal authority, the Board concludes that a preponderance of competent medical evidence of record establishes that service connection for peripheral neuropathy is not warranted. Both Claims The Board also has considered the assertions the veteran has advanced on appeal in written statements and during his VA examinations. However, the veteran cannot establish a service connection claim on the basis of his assertions, alone. While the Board does not doubt the sincerity of the veteran's belief that he has a current hearing loss and peripheral neuropathy disabilities that are associated with military service, these claims turn on a medical matter-the relationship between a current disability and service. Questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson without the appropriate medical training or expertise, the veteran simply is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, the veteran's assertions regarding diagnosis and/or etiology of his hearing loss and peripheral neuropathy simply do not constitute persuasive evidence in support of the claims. For the foregoing reasons, the claims for service connection for bilateral hearing loss and peripheral neuropathy must be denied. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER New and material evidence has been received in order to reopen a claim for entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for peripheral neuropathy is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs