Citation Nr: 1300331 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-03 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1965 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for bilateral hearing loss. In August 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In a December 2008 decision, the Board denied the Veteran's claim. He appealed to the United States Court of Appeals for Veterans Claims ("Court") and the parties filed a Joint Motion for Partial Remand ("Joint Motion") in January 2010. The Court granted the parties' motion, vacated the Board's December 2008 denial pertaining to bilateral hearing loss, and remanded the matter to the Board for development consistent with the Joint Motion. In April 2010, the Board remanded this case to the RO via the Appeals Management Center ("AMC") so the Veteran could undergo a VA examination, which was held in June 2010. In November 2011, after having determined the June 2010 VA examination report was inadequate, the Board again remanded this case to the RO via the AMC for a VA examination. FINDING OF FACT The Veteran does not have current bilateral hearing loss that is causally related to service. CONCLUSION OF LAW The Veteran does not have bilateral hearing loss due to disease or injury that was incurred or aggravated by active military duty nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012) REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the preponderance of the evidence is against a finding that the Veteran's post-service hearing loss began during active service or is related to any incident of service. As a result, the Board denies the Veteran's claim for service connection for hearing loss. The Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). An April 2007 VCAA letter explained the evidence necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss. This letter also informed him of his and VA's respective duties for obtaining evidence. The letter was provided before initial adjudication of the claim in July 2007. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally the Veteran was advised of the manner in which effective dates and disability ratings are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained his service treatment records (STRs) and post-service VA treatment records. The Veteran has not identified any private treatments that he wished the RO to obtain, however, he has submitted lay statements from his family and employer. VA's duty to assist includes providing a VA examination and opinion where there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA examinations were conducted in June 2007, July 2010, and December 2011. Although the first two VA examinations were found to be inadequate, the Board finds the December 2011 examination report is adequate. This matter was specifically remanded by the Court to enable VA to further consider the Veteran's contentions regarding alleged continuing hearing loss since service and for a VA medical examination that considered the Veteran's "potentially corroborative lay evidence." See joint motion, page 4. The Veteran was reexamined by a VA audiologist as directed, and the Board has considered the Veteran's assertions. However, the evidence indicates that the Veteran is not credible in his report of continuing symptoms since his discharge from active duty; his pre-separation report of physical examination belies the lay statements submitted in support of this claim; and a VA medical examiner has reviewed the record as directed and reported that the Veteran's hearing loss is not related to service. Through his representative, the Veteran now argues a previously unasserted deficiency in the development of his claim - i.e., that VA should comply with regulations applicable to the Occupational Safety and Health Administration (OSHA), and promulgated by the United States Department of Labor. Compare Written Brief Presentation, dated November 29, 2012, with Notice of Disagreement dated August 2007; Substantive Appeal received in January 2008; Statement of Accredited Representative in Appealed Case dated in June 2008; Board hearing transcript dated August 2008; Joint Motion for Remand dated January 2010; Written Brief Presentation, dated March 2010; SSOC Notice Response dated February 2011; Statement of Accredited Representative in Appealed Case dated in February 2011; Written Brief Presentation, dated October 2011; Statement in Support of Claim dated in February 2012; and Statement of Accredited Representative in Appealed Case dated in February 2012. The RO/AMC complied with the Board's April 2010 and November 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO/AMC scheduled appropriate VA examinations and readjudicated the claim as necessary. The Board is bound by applicable statutes, VA regulations, and precedent opinions of VA's General Counsel and other than an inquiry into whether the audiological examinations are probative (i.e., relevant, competent, informed and responsive to the inquiry), there is no merit to the Veteran's late assertions. See 38 C.F.R. § 19.5 (2012). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Bilateral Hearing Loss The Veteran alleges that he was exposed to hazardous noise due to his military occupational specialty (MOS) as an aviation mechanic. His MOS is confirmed by his DD Form 214, and noise exposure was conceded by the RO in the July 2007 rating decision. The Veteran further alleges that he has had continuous bilateral hearing loss symptoms since service. Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110 (2002). A disorder may also be service connected if the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997); see Barr v. Nicholson, 21 Vet. App. 303 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition such as a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet.App. 518 (1996); Gilbert v. Derwinski, 1 Vet.App. 49 (1991). 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. 38 C.F.R. § 3.385. A lack of evidence that a claimant exhibited hearing loss during service is not fatal to a claim for service connection. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Veteran has a current hearing loss disability. See VA examinations dated June 2007, July 2010, December 2011. The evidence also shows that the Veteran's assertions of in-service acoustic trauma are consistent with his MOS. However, the Veteran's STRs are negative for complaints, treatment, or diagnosis of bilateral hearing loss. At his induction examination, the Veteran indicated he had no history of hearing loss. His ears were clinically evaluated as normal. See Reports of Medical History and Examination, dated June 15, 1965. An audiogram was given, and the Veteran's puretone thresholds, in decibels, were as follows: HERTZ June 1965 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) / 0 (5) LEFT 5 (20) 0 (10) -5 (5) / 0 (5) See Report of Medical Examination dated June 15, 1965. No results were provided at 3000 Hertz. The Board notes, prior to November 1967, service departments used American Standards Association (ASA) units to record puretone sensitivity thresholds in audiometric measurement. Beginning in November 1967, service departments used ISO-ANSI (International Standards Organization-American National Standards Institute) units. For purposes of comparison, the table above shows the ASA measurements recorded on the June 1965 induction examination, with the comparable ISO-ANSI measurements in adjacent parentheses. In May 1967, the Veteran's hearing was again evaluated, shortly before separation. He did not report any ear trouble or hearing loss. His ears were clinically evaluated as normal. See Reports of Medical History and Examination dated May 1, 1967. Audiographic testing of the Veteran's puretone thresholds, in decibels and converted to ISO-ANSI units, were as follows: HERTZ May 1967 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) / 5 (10) LEFT 5 (20) 5 (15) 5 (15) / 5 (10) See Report of Medical Examination dated May 1, 1967. No results were provided at 3000 Hertz. The Veteran's hearing was rated 1 out of 4 on his physical profile. Id. The first medical record that documents the Veteran's hearing loss is dated in June 2007 - i.e. 40 years after he was discharged from active duty. The Veteran attended a VA examination. Bilateral sensorineural hearing loss was diagnosed at that time. See VA examination dated June 23, 2007. The examination report is consistent with the Veteran's testimony that he did not seek medical care for his hearing loss until about two years prior to his hearing on this claim. See Hearing dated August 11, 2008 page 10. The Veteran's assertion of continuing hearing loss since separation from active duty is not credible. In his May 1967 separation examination, the Veteran responded "no" to the inquiry of whether he then had, or ever had hearing loss. The Veteran then signed the report of medical history, certifying that it was "true and complete to the best of [his] knowledge," and the form was then signed by a medical officer of the U.S. Army. Testing also indicated normal findings of the Veteran's ears and hearing. His PUHLES hearing profile segment indicated that he was then in a high state of physical fitness. See Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Letters from the Veteran's sister and employer also allege continuity of symptomatology. See Letter from M.A.H. dated August 10, 2008; Letter from B. County Commissioners dated July 23, 2008. Finally, the Veteran has testified that he denied any hearing problems upon separation because he did not realize his hearing had diminished until after he returned home from active duty. See Veteran's statement dated February 14, 2012. Apart from his allegation of continuity, the Veteran's allegation of post-service recognition of hearing loss, and that of his sister and employer have been investigated by competent medical examiners. The Veteran has had three VA examinations regarding his bilateral hearing loss. The June 2007 and July 2010 examinations both found that the Veteran's hearing loss was not related to service because his hearing was normal upon separation. Although these opinions were both found to be inadequate, the deficiency does not render them non-probative, but only non-fully explained. It cannot be doubted that they nonetheless bear probative medical value as they were authored by competent medical professionals. The December 2011 VA examiner came to the same conclusion but provided supporting rationale for the opinion. She reviewed the Veteran's STRs and noted his hearing in service was always within normal limits, and that no hearing fluctuation or progression during service was shown by the Veteran's in-service audiograms. She also noted the Veteran's employment history of working with heavy machinery, and stated that hearing protection was not standard in military or in civilian occupations at the time of the Veteran's discharge in 1967. She noted that the Veteran had normal hearing in May 1967, and his hearing loss was not therefore caused by service. To the extent that the Veteran may have had acoustic trauma in service, she observed that threshold shifts showing hearing loss can be temporary, and disappear in 16 to 48 hours after exposure; as well as that such shifts can also be permanent. Most significantly from both a medical and factual perspective, the examiner reported that a normal audiogram after acoustic trauma, which the Veteran had, would verify that the a threshold shift was temporary and that hearing recovered. See VA examination dated December 31, 2011; Addendum dated January 28, 2012. The VA examiner is competent to make such opinions, and the opinion is informed and probative. The Board assigns no probative weight to the VA examiner's observations as to the formerly-applicable elements of a well-grounded claim, which is no longer a standard that VA uses in adjudicating claims for benefits. It is not the VA examiner's role to evaluate the evidence or make findings of fact. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that the benefit of the doubt doctrine is a legal construct to be applied by VA adjudicators when the evidence is approximately balanced, not by a medical professional in the rendering of medical opinions). The Veteran has argued that he should be service connected for hearing loss pursuant to the holding in Hensley. He argues that he entered service with normal hearing, was exposed to acoustic trauma, and then separated with noticeably worse hearing, and that there were no other intercurrent causes. However, Hensley sets forth the possibility of service connection when hearing loss is diagnosed after separation, but it does not obviate the need for probative evidence that the disability is related to service. Apart from the finding that the assertions of continuity of symptoms in and since discharge are not credible, the Veteran and his sister are not competent to render an opinion as to etiology of the Veteran's hearing loss, as none of them have been shown to have the requisite medical knowledge or training to be capable of doing so. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr, 21 Vet. App. at 309; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Court held that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, although the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. The statements of continuing symptoms are not credible in this matter. Additionally, as noted above, there are no clinical finding of hearing loss until June 2007, 40 years after the Veteran separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service). The lay statements have been reviewed by a competent medical professional who from such a medical perspective has opined against a connection between current hearing loss and service. The Board therefore places greater weight of probative value on the clinical findings and the history the Veteran presented to medical professionals for clinical purposes when he was discharged from service, than it does on recent statements to VA, made in connection with a claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility). The preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for hearing loss will be denied. See 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for hearing loss is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs