Citation Nr: 1303072 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-37 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury, to include headaches. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to February 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the February 2009 rating decision additionally granted service connection for a left wrist disability, and provided a noncompensable rating. The Veteran submitted a notice of disagreement with this finding, and the RO provided a Statement of the Case addressing the left wrist in August 2009. On his September 2009 substantive appeal, the Veteran indicated he wished to pursue the appeal of his hearing loss and tinnitus claims only. A separate substantive appeal was filed in regards to his traumatic brain injury claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's headaches were initially documented many years after service, and there is no competent medical, or competent and credible, lay evidence that the Veteran has a disability that is related to an in-service head injury. 2. A bilateral hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current bilateral hearing loss disability is related to active military service. 3. Tinnitus was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that tinnitus is related to active military service. CONCLUSIONS OF LAW 1. Residuals of a traumatic brain injury, to include headaches, were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). 2. A bilateral hearing loss disability was not incurred in or aggravated by the Veteran's active military service, and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated November 2007 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The November 2007 letter additionally included notice regarding the degree of disability and effective date. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical treatment records have been obtained, to the extent available. The Veteran was afforded a VA examinations in January 2009, February 2010, and January 2012. The February 2010 and January 2012 examiners reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination reports are adequate for the purpose of rendering decisions on the current appeals. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The RO made attempts to obtain occupational hearing conservation tests. The Veteran indicated that he underwent occupational hearing tests beginning in the late 1960s; however, the commercial airline where he was employed for 40 years is no longer in service. The ROs attempts to contact the airline company were returned to sender. Additionally, the RO attempted to obtain VA treatment records from the mid-1960s, but the records could not be found. In May 2012, the Veteran indicated that his mid-1960s treatment was not for hearing loss, tinnitus or residuals of a traumatic brain injury. The Veteran was provided with the opportunity to testify at a hearing, but he declined this opportunity. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Laws and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The demonstration of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A disorder may also be service connected if the evidence of record reveals that 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, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (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, 1377 (Fed. Cir. 2007). For continuity of symptomatology, although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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, 469 (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). With regard to lay evidence, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan and Jandreau, 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. 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 like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377, n.4. Service connection for impaired hearing is established only when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA considers impaired hearing to be a disability when (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or; (b) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or; (c) speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. §§ 1112 and 1137; 38 C.F.R. §§ 3.307, 3.309(a); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has stated that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail on a claim for benefits. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Residuals of a Traumatic Brain Injury The Veteran contends that he developed headaches as a result of an in-service head injury, which have continued since service to the present. Service treatment records show that in June 1953, the Veteran fell roughly 20 feet off of an airplane wing and struck his head. He was "stunned and may have momentarily lost consciousness." He was taken by an ambulance to the hospital for observation. He complained of left wrist pain, right elbow pain, and pain on the left side of his head. He had a negative skull x-ray. The following day, his treating physician noted there was no evidence of increased intra-cranial pressure. There are no additional treatment notes regarding his head injury from June 1953 through his discharge in February 1955. He underwent an examination on February 1955 for transfer to the U.S. Marine Corps Reserves, which included a normal clinical evaluation of his head, face and neck. In December 1956, he underwent an additional examination, which included a self-reported medical history. While he indicated other past/present medical problems (whooping cough, frequent colds, appendicitis, etc.), the Veteran denied a history of frequent or severe headaches. His December 1956 examination included a normal clinical evaluation of his head and neck. The first indication of chronic headaches in the claims file is from the Veteran's October 2007 claim for residuals of a traumatic brain injury. He indicated he suffered a possible concussion in service after falling from an airplane wing, and that "since that time [he has] suffered from headaches." A November 2006 VA treatment record included the Veteran's description of his in-service fall and possible loss of consciousness. He did not describe headaches as a residual of the fall, although he indicated he noticed hearing loss subsequent to the fall. In October 2007, the Veteran underwent an annual examination. The physician provided a physical examination and reviewed any health complaints the Veteran provided. He did not report complaints of headaches. In October 2008, he returned again for his annual examination. He brought his service treatment records and reported his in-service injury to his left wrist after falling off of the airplane in 1953. He noted that he "injured his head" when he fell off the plane as well. During his physical examination he reported using hearing aids and having occasional post-nasal drip, but he did not complain of headaches. In May 2009, the Veteran reported having suffered from headaches since his fall in service. He stated that his headaches occurred daily and lasted several hours. He also stated they had "recently changed in type." He denied ever seeking treatment for them prior ("no workup ever done"). The Veteran denied reporting his headaches to his physician of "several years." The physician reviewed VA records available since 2002, and noted that the Veteran had never previously complained of headaches. He described headaches in the occipital region which would begin at 5 pm every evening and last until he went to bed. He also reported milder, frontal headaches in the mornings, which are relieved by taking two Aleve every morning. He additionally reported that "when he sustains even a slight bump to his head, he gets headaches." In August 2009, the Veteran filed a notice of disagreement with the denial of his claim for residuals of a traumatic brain injury. He indicated that when he struck his head he lost consciousness, and did not awaken until he was in the hospital. He also argued that he developed headaches and "difficulty dealing with complex commands" as a result of his head injury. In February 2010, the Veteran was afforded a VA traumatic brain injury examination. The examiner reviewed the Veteran's service treatment records and noted that he did not report headaches post-head injury or during his December 1956 exit examination. The examiner additionally noted he did not mention headaches to VA treatment providers until October 2009. He described daily occipital headaches, which would progress toward the left ear. He also described increased pain whenever he would "bump" his head. He endorsed vertigo and balance or coordination problems after "getting up quickly." He reported depression when he had a headache, decreased attention, and difficulty concentrating. He also reported hypersensitivity to light and sound. Objectively, his reflex and sensory examinations were normal. While he complained of mild memory loss, and attention, concentration and executive functions, there was no objective evidence of a cognitive problem upon testing. A June 2009 MRI of his brain was noted to be normal. The examiner found that the Veteran did not suffer from a traumatic brain injury in service. She stated she would not be able to opine whether the Veteran's headaches were a result of his in-service injury without resorting to mere speculation, because he did not mention headaches post-service until 2009. "Unsure why he has headaches." Opinions, which can only make the necessary connection between the current disorder and the Veteran's military service by resorting to mere speculation, amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Further, a VA examiner cannot use speculation "as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, in Roberts v. West, 13 Vet. App. 185 (1999), the Court found that an inconclusive medical opinion did not mean that the examination was inadequate. This case is similar to Roberts. Here, the examiner reviewed the evidence of record and indicated that, without resorting to speculation, she could not resolve the issue of a nexus between the Veteran's subjective headaches and service. Because the examiner reviewed all the evidence of record in rendering this decision, and provided a rationale for the statement, the examination and "opinion" rendered are not inadequate. Here, the examiner indicated that she could not opine whether his headaches were due to his in-service injury without resort to mere speculation because the only evidence of residuals of his head injury are his subjective complaints of headaches, and he only recently subjectively complained of headaches beginning in 2009. Moreover, the examiner considered a June 2009 MRI of the Veteran's brain that was interpreted as normal along with objective testing of the Veteran that was normal, as well as the Veteran's lay complaints of pain and the onset of this pain to determine the etiology of his headaches. The examiner determined the Veteran did not suffer a traumatic brain injury in service as service treatment records included negative head x-rays and the June 2009 MRI was normal. As this claim for headaches as a residual of an in-service head injury is singularly supported by lay assertions, the Board's must address the credibility of the Veteran's complaints of continuity of symptomatology. As noted above, the Court has found that to establish continuity of symptomatology, 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. Here, service treatment records note an in-service head injury, but do not note complaints of or treatment for headaches. The Board finds the Veteran's contentions that his headaches began in service as a result of his head injury, and have continued since service to the present, are not credible. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; and, in the case of headaches, that he is competent to testify as to the presence of the disorder. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) While the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, the Board finds that the contemporaneous medical evidence which does not include subjective complaints, is one factor in finding the Veteran not credible. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint may be considered with other factors in the analysis of a service connection claim). Contemporaneous to his injury in service, the Veteran did not complain of headaches, to include during his December 1956 examination when he complained of numerous other medical problems. He additionally admitted never seeking treatment for or complaining to a medical care provider regarding his subjective headaches prior to 2009 (53 years after discharge and 56 years after his in-service head injury). Indeed, in 2007 and 2008 annual examinations he complained of hearing loss and post-nasal drip but did not complain of headaches. Also, his initial claim indicated that his in-service head injury residuals were manifested by headaches only. Two years later he complained of memory and cognitive problems associated with his head injury. On testing, there were no subjective indications of a memory or cognitive disorder. As there is no evidence of in-service headaches, no evidence of treatment for or complaints of headaches for 53 years after service, and no objective evidence of memory loss or brain trauma, the Board finds the Veteran's assertion of a continuity of symptomatology since service to not be credible. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for residuals of a traumatic brain injury, to include headaches, there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Hearing Loss and Tinnitus On the Veteran's October 2007 claim of entitlement to service connection for bilateral hearing loss and tinnitus, he reported onset in service as a result of working on the flight line. He also reported that he noticed his bilateral hearing loss and tinnitus subsequent to his in-service fall from an airplane, and that his hearing loss and tinnitus were a result of this in-service head injury. Service treatment records, which include his treatment for his June 1953 head injury, do not include complaints of or treatment for hearing loss or tinnitus. His February 1952 entrance examination included whisper test hearing results of 15 out of 15 bilaterally. His February 1955 transfer examination included whisper test hearing results of 15 out of 15 bilaterally. And, again in December 1956, he had whisper test hearing results of 15 out of 15 bilaterally. He also denied a medical history of ear trouble during his December 1956 examination. In June 2003, the Veteran was seen by a local area fee basis audiologist. He reported gradual onset hearing loss, and denied tinnitus. During a November 2006 audiology consultation, the Veteran did not report tinnitus. He indicated that his hearing loss began in the 1950s as a result of a head injury in service. He was noted to have in-service noise exposure as an airplane mechanic, and post-service noise exposure as a commercial airplane mechanic. He also had recreational noise exposure due to hunting and use of power tools without hearing protection. In September 2007, an audiology note indicated the Veteran denied tinnitus. He also reported a family history of hearing loss. Puretone threshold results met the auditory threshold results for a hearing loss disability according to 38 C.F.R. § 3.385. In January 2009, the Veteran was afforded a VA audio examination. The examiner reviewed the service treatment records and noted the Veteran suffered a "possible concussion" after his in-service fall, but that there was no reference to symptoms of hearing loss or tinnitus. The examiner noted the 2003 fee-basis treatment record where the Veteran reported a history of gradual onset of hearing loss. He described in-service exposure to hazardous noise due to weapons training, and radial aircraft engines. He also described post-service noise exposure due to 40 years as a commercial aircraft mechanic. He had recreational noise exposure from hunting and riding a motorcycle for 20 years. He reported that his airline company started occupational hearing tests in the late 1960s and that he was informed he had hearing loss when these tests were first provided. He stated that his hearing loss progressed during his work for the airline company but that he did not file a worker's compensation claim. He described current tinnitus, and stated he began 15 to 20 years ago (roughly 1989). He indicated his tinnitus was usually in conjunction with a headache. Puretone threshold results revealed auditory thresholds which met the criteria for hearing loss disability under 38 C.F.R. § 3.385. The examiner noted that a number of the thresholds showed improvement compared to those reported in 2003. The examiner opined that the Veteran's tinnitus was less likely as not a symptom of hearing loss, acoustic trauma in service, or a head injury in service as the Veteran's reported history of tinnitus began in the 1980s, and are associated with his headaches. The examiner also noted service treatment records did not include complaints of tinnitus or headaches. The examiner found that he could not resolve the etiology of the Veteran's hearing loss without resort to mere speculation. The examiner quoted two Institute of Medicine reports regarding hearing loss. "In the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service," and "the evidence is not sufficient to determine the probability of acquiring a noise-induced hearing loss associated with service in the military or in specific branches of the military." The examiner concluded, despite his contention that he could not provide an opinion without resorting to mere speculation, that the Veteran's current hearing loss "would not be unusual for the reported post-service exposures." In May 2009, the Veteran provided a notice of disagreement to the RO's denial of entitlement to service connection for hearing loss and tinnitus, and reported that he first noticed his hearing loss and tinnitus in service and that it had progressively worsened since service. In February 2010, the Veteran provided a statement that he was constantly exposed to acoustic trauma associated with working on the flight line and in the shops using power tools during his active service. He then noted he worked for a commercial airline company for 40 years after service. In September 2011, the Veteran provided a letter from a private audiologist. She noted the Veteran served for three years as an aircraft mechanic in the U.S. Marine Corps, with "report[ed] excessive exposure to loud noise while working on piston engine aircraft on the flight line and use of power tools." He reported experiencing tinnitus on numerous occasions while performing these duties. He provided copies of his service treatment records to the private audiologist. She opined that his noise exposure and acoustic trauma during military service was significant, and "it is at least as likely as not that this acoustic trauma contributed to his current hearing loss and tinnitus...[because] acoustic trauma causes damage to outer hair cells in the cochlea resulting in permanent, progressive, sensorineural hearing loss and tinnitus." She noted his hearing loss and tinnitus may have worsened as a civilian. The RO scheduled the Veteran for an additional audio examination in January 2012 because the VA concedes that he has a history of hazardous noise exposure during service, and the January 2009 VA examiner did not note this in the examination report. In January 2012, the Veteran was afforded a second VA audio examination. The examiner reviewed the claims file and noted the Veteran denied tinnitus in June 2003 and September 2007, and did not report tinnitus in November 2006. She noted that he reported onset of tinnitus in the late 1980s in January 2009. She also noted that he was prescribed medication with a potential side effect of ototoxicity, with hearing loss and/or tinnitus listed as possible side effects. She also reviewed his service treatment records and recorded the results of his whisper test results in service, which remained 15 out of 15 on all tests (February 1952, February 1955 -twice, and December 1956). He reported a post-service education of Aero Mechanics school from May to June 1955. During the interview, the Veteran noted that he could not recall when he first noticed tinnitus, but that it had been a "long time." He reported military noise exposure from tools and aircraft engines. He indicated that from 1951 to 1991 he worked as an aircraft mechanic for a commercial airline. He used hearing protection with this civilian aircraft mechanic employment beginning in the 1980s. He denied motorcycle riding. The examiner noted that the VA had conceded that the Veteran was exposed to hazardous noise in service. In reviewing the pertinent evidence in the claims file, the examiner noted the September 2011 private audiologist opinion, and noted that the opinion did not mention the Veteran's post-service noise exposure. After a review of the claims file, and an interview and examination of the Veteran, the examiner opined that it was less likely than note that his hearing loss was associated with in-service noise exposure. She noted the qualitative method used during service (whisper test) was not reliable evidence of normal hearing and is insensitive to high-frequency hearing loss characteristic of acoustic trauma. She also noted he had significant post-service hazardous noise exposure due to 40 years as a commercial airplane mechanic. She also noted that in May 1969 the first federal regulation of occupational noise exposure was passed, 18 years after the Veteran began his civilian occupation. She also noted that it was not until 1981 that procedures for a hearing conservation program began. This corresponds to the Veteran's report of first using hearing protection in the 1980s. Citing to the American College of Occupation and Environmental Medicine Position Statement on Noise-Induced Hearing Loss, "scientific research indicates that hearing loss due to noise does not progress beyond age-related changes once the exposure to noise is discontinued." "Research indicates acoustic trauma is immediate and not progressive." Based upon the evidence, the examiner noted his hearing loss was "more likely (greater than 50 percent probability)" associated with exposure to occupational hazardous noise post-service, age and other factors. The examiner additionally opined that the Veteran's tinnitus was less likely as not associated with his in-service noise exposure because his report of onset was inconsistent and included onset post-service. She also noted his significant post-service occupational noise exposure and a medication with tinnitus as a possible side-effect. She indicated that determining if his tinnitus was related to age, age-related hearing loss, current medications, past medications, post-military noise exposure and "yet other identified factors would be mere speculation." As noted above, the Veteran is competent to provide lay statements regarding the onset of his hearing loss and tinnitus, and in the case of tinnitus, to indicate the presence of the disease. Again, the Board finds the Veteran's statements of the onset of his symptoms of hearing loss and tinnitus to be less than credible. He has provided contrary reports of the onset of his tinnitus, to include that his tinnitus and hearing loss began after his head injury in service, that his tinnitus began in the 1980s, and that he does not recall when his tinnitus began. He additionally denied the presence of tinnitus (a completely subjective disorder) in 2003 and 2007. Additionally, in 2003 the Veteran reported the gradual onset of hearing loss, and in November 2006 he reported onset subsequent to his head injury. During his 2009 VA examination he indicated he was first informed he had hearing loss by his commercial airline employer in the 1960s. The claims file contains conflicting medical opinions regarding the etiology of the Veteran's hearing loss and tinnitus. In September 2011, a private audiologist related the Veteran's hearing loss and tinnitus to his in-service hazardous noise exposure. The January 2012 VA audiologist found that it was less likely than not his hearing loss and tinnitus were related to or incurred in service, and were more likely related to his significant post-service occupational noise exposure. The January 2009 VA examiner found that an opinion on etiology of hearing loss would required resorting to mere speculation, but additionally noted the Veteran's tinnitus was not related to his active service. In contrasting these opinions, the Board is cognizant that the Court has stressed that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the audiologists reviewed the Veteran's service treatment records and interviewed the Veteran. There is no indication the private audiologist had access to the Veteran's claims file or VA treatment records, as she did not note his contradictory statements regarding the onset (or presence) of his tinnitus. All of the audiologists provided sound and fully articulated rationales for their opinions as well. The private audiologist noted the Veteran had significant in-service noise exposure due to his work as an airplane mechanic. The Veteran appears to have failed to inform her that he also had 40 years of post-service employment as an airplane mechanic, including nearly 30 years without the use of hearing protection. The January 2009 examiner found that providing an opinion based on the etiology of the Veteran's hearing loss would require resorting to mere speculation because his service treatment records only included whisper test results, which were noted to be inadequate to diagnosed high frequency sensorineural hearing loss. The examiner did note that the Veteran's hearing loss "would not be unusual for [his] reported post-service exposures." The September 2011 audiologist noted that acoustic trauma causes damage to the outer hair cells in the cochlea resulting in permanent, progressive¸ sensorineural hearing loss and tinnitus. The private audiologist did not cite any studies or texts, but appears to have been relying on her experience and education in providing this statement. The January 2012 VA audiologist, however, cited studies which concluded that acoustic trauma is immediate and not progressive. Given the private audiologists description of acoustic trauma immediately damaging hair cells on the cochlea, the study cited by the VA audiologist that the hearing loss is immediate seems more accurate logically. Overall, the 2012 VA audiologist had a greater understanding of the Veteran's noise exposure history, and supported her negative opinion by citing to studies. Based on her opinion, the cited study, the Veteran's statement that his hearing loss progressed during his post-service occupational noise exposure, and his lack of complaints of hearing loss or tinnitus following his in-service head injury (while continuing to report other health problems), the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. Additionally, the Board finds that entitlement to service connection for hearing loss and tinnitus based on a continuity of symptomatology is not warranted as the Veteran's statements regarding in-service onset are contradictory and not credible. In the absence of any persuasive evidence that the Veteran's current hearing loss and tinnitus are etiologically related to active service, service connection is not warranted and the claims must be denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of a traumatic brain injury, to include headaches, is denied. Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs