Citation Nr: 1306200 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-35 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from May 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran submitted additional evidence to the Board with a written waiver of initial RO consideration of the evidence. Therefore, the Board has the jurisdiction to consider the new evidence pursuant to 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. In a September 2002 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus; the Veteran did not initiate a timely appeal of the rating decision. 2. In October 2008, the Veteran sought to reopen the claims for service connection for bilateral hearing loss and tinnitus. 3. The evidence received since the prior final denial is neither cumulative nor redundant of the evidence previously of record and raises a reasonable probability of substantiating the claims. 4. The Veteran experienced acoustic trauma in service. 5. The Veteran did not sustain a disease or injury (other than acoustic trauma) of the bilateral ears in service. 6. Symptoms of bilateral hearing loss and tinnitus were not chronic in service. 7. Symptoms of bilateral hearing loss did not manifest to a compensable degree within one year of separation. 8. Symptoms of bilateral hearing loss and tinnitus have not been continuous since service separation. 9. The Veteran's bilateral hearing is not etiologically related to service. 10. The Veteran's tinnitus is not etiologically related to service. CONCLUSIONS OF LAW 1. The September 2002 rating decision which denied service connection for hearing loss and tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for hearing loss and tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 4. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a 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. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 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) ; 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1, the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2009. This letter advised the Veteran of the basis of the previous denial of service connection for hearing loss and tinnitus. The letter also informed the Veteran of the evidence required to substantiate a service connection claim and VA's respective duties for obtaining evidence. This included notice of how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran 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. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claims. Moreover, the Veteran underwent adequate and probative VA medical examinations for his claims. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that 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 relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the 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). II. Claims to Reopen The RO previously denied service connection for hearing loss and tinnitus in a September 2002 rating decision. The September 2002 rating decision found that service treatment records showed no treatment, findings or diagnoses of hearing loss or tinnitus during service or at the time of separation. In September 2002, the RO informed the Veteran of the rating decision and his appellate rights. The Veteran did not submit a timely NOD to the September 2002 rating decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran did not submit any information or evidence within one year of the September 2002 rating decision that would effect the finality of that rating decision. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). In October 2008, the Veteran filed a claim to reopen for service connection for hearing loss and tinnitus. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. During the pendency of the appeal, the RO reopened the claim for service connection for tinnitus and denied the claim on the merits. Regardless of whether the RO reopened the claim, the Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). For claims filed on or after August 29, 2001, as in this case, 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 probability of substantiating the claim. The threshold for determining whether new and material evidence raises a reasonable probability of substantiating the claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's Secretary's duty to assistor through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The evidence of record at the time of the September 2002 rating decision included service treatment records, private audiology records dated in 1999, and a report of a VA examination dated in August 2002. The evidence received since the prior final rating decision includes the transcript of the Board hearing held in March 2012, treatment records from Cobb Audiology and an opinion from an audiologist, dated in 2007, a report of a VA examination, dated in November 2009, and a statement and treatment records from a private audiologist, dated in March 2012. The VA examination report provides a medical nexus opinion that current hearing loss is "less likely than not" related to noise exposure in service. The treatment records from Cobb Audiology reflect evaluations for hearing loss and provide a medical opinion that the Veteran's hearing loss may be due in part to his loud noise exposure while in the Navy. The statement from the private audiologist, dated in March 2012, reflects an opinion that the Veteran's current hearing loss and tinnitus are related to noise exposure during service. The Board finds that new and material evidence has been received to reopen the claims for service connection for bilateral hearing loss and tinnitus. The evidence submitted since the prior final denial is new, as it was not previously of record. The evidence is material, as it relates to the basis of the prior denial. Accordingly, the Veteran's claims are reopened and will be readjudicated on the merits. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). Reopening the claims does not end the inquiry; rather, consideration of the claims on the merits is now required. Because the appellant has had opportunity to address the merits of these claims, the Board may proceed with a final adjudication of the merits of the claim because there is no prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Analysis of Claims Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for sensorineural hearing loss if manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1131,1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2012). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran contends that his hearing loss and tinnitus are related to noise exposure during service. In statements in support of his claim, the Veteran has indicated that he served aboard an aircraft carrier and was exposed to loud noise, including jet engines. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the bilateral ears during active service, and that symptoms of bilateral hearing loss were not chronic during active service. While the Veteran has provided credible testimony of noise exposure in service, the service treatment records do not demonstrate complaints, findings, or a diagnosis of bilateral hearing loss or tinnitus. The Board finds that hearing loss and tinnitus were not chronic in service. Service treatment records contain no specific complaints or diagnoses relating to hearing loss or tinnitus. The audiogram performed upon enlistment in February 1967 reflects that audiometric thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, 4000 and 6000 Hertz were 20, 10, 20, 30, 25 and 30 for the right ear. The audiometric frequencies for the left ear at frequencies of 500, 1000, 2000, 3000, 4000 and 6000 Hertz were 20, 30, 20, 20, 25 and 30. (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.) The Board acknowledges that the enlistment audiogram demonstrated thresholds above 20 decibels, indicating some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). However, the examining physician did not diagnose hearing loss, nor did the Veteran make any complaints of hearing loss at the enlistment examination. Thus, there was no hearing loss disability "noted" at the time of enlistment, and the presumption of soundness applies. See 38 U.S.C.A. § 1111 (2011). There were no complaints, findings or a diagnosis of tinnitus at the time of entrance into service. Upon separation in 1971, an audiogram showed thresholds, in decibels, of 15, 20, 15 and 15 in the right ear at frequencies of 500, 1000, 2000 and 3000 Hertz with thresholds of 15 at each of those frequencies in the left ear. Thus, the hearing thresholds recorded at separation actually improved as compared to those recorded at the time of enlistment, demonstrating that symptoms of hearing loss were not present or chronic during active service. There were no complaints, findings or a diagnosis of tinnitus at the time of separation. Next, the Board finds that the weight of the evidence demonstrates that symptoms of hearing loss and tinnitus were not chronic in service or continuous after service separation. On service separation audiological examination, as discussed above, puretone thresholds showed improvement as compared to the service entrance audiometric test results, and hearing loss, even at a non-disabling level, was not demonstrated at separation. In addition, there were no documented complaints of hearing loss or tinnitus at separation or at any time during active service. Initial post-service treatment of hearing loss is shown in private audiology records dated in August 1999. The Board also finds that the weight of the evidence demonstrates that hearing loss did not manifest to a compensable degree within one year of service separation. Although the Veteran has asserted that hearing loss had its onset in service, the weight of the evidence demonstrates no hearing loss complaints or symptoms during the one year period after service, and no diagnosis or findings of hearing loss of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). For these reasons, the Board finds that hearing loss, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss are not applicable in this case. 38 C.F.R. §§ 3.307 , 3.309. The Veteran had a VA examination in August 2002. The Veteran reported that he had significant noise exposure while on active duty service. He reported that he was not required to wear ear protection and that the gunnery and aircraft takeoff/ landings created an environment of significant noise exposure. He complained of only occasional bilateral tinnitus. He indicated that, at the time of separation from service, the medical officer who examined him indicated that he had hearing loss present. The VA examiner indicated that an audiogram done at the VA revealed a bilateral mild to severe sensorineural hearing loss. The examiner opined that review of the Veteran's claims file indicated that the Veteran's hearing was normal at the time of enlistment and at separation. The VA examiner diagnosed bilateral mild to severe sensorineural hearing loss. The examiner opined that, since the auditory thresholds were normal at the time of separation, it appears likely that the Veteran's hearing loss occurred subsequent to separation from service. The examiner stated that, although the Veteran did indicate that the medical officer indicated to him that he had a hearing loss present, he could not find any notation to that effect in the claims file. Therefore, the examiner opined that it was his opinion that it is less likely than not that the Veteran's current hearing loss is related to noise exposure that occurred while on active duty. Private audiology treatment records dated in October 2007 reflect a diagnosis of moderate sensorineural hearing loss. In an October 2007 statement, a private audiologist, J.C., noted that the Veteran had moderate sensorineural hearing loss bilaterally. He noted that the Veteran was onboard the USS Lexington from 1968-71 and was exposed to loud noises during that time. J.C. stated that the Veteran was exposed to jet turbine noise while aboard the Lexington and stood 4 hour watches in after steering exposed to engine noise as well as hydraulic rams. He noted that hearing protection was apparently neither required nor supplied. J.C. opined that the Veteran's hearing loss may be due in part to his past loud noise exposure while in the Navy. The Veteran had a VA examination in November 2009. The Veteran reported military noise exposure to aircraft engines and other loud mechanical noises while stationed on an aircraft carrier. He reported that hearing protection was not worn. The Veteran did not report a current complaint of tinnitus. Audiometric testing showed bilateral hearing loss as defined by § 3.385. The VA examiner noted that review of the Veteran's service records revealed hearing sensitivity within normal limits from 500 Hertz to 3000 Hertz bilaterally on the separation audiogram in October 1971. The examiner noted that 4000 to 6000 Hertz was not tested at separation. The examiner opined that, since the audiometric thresholds were normal at the time of separation from service, it appears that the Veteran's hearing loss occurred subsequent to separation from service. The examiner noted that a 2006 study by the Institute of Medicine (IOM) concluded that, based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner opined that the Veteran's hearing loss is less likely than not a result of noise exposure during military service. VA audiology records dated from 2010 to 2011 reflect diagnoses of moderate to severe sensorineural hearing loss. In March 2012, the Veteran submitted a medical opinion from another private audiologist, J.C. J.C. indicated that an audiometric assessment in March 2012 showed moderate to severe sensorineural hearing loss in both ears. J.C. noted that the Veteran served in the Navy and was exposed to excessive noise levels from aircraft engines, diesel engines, and hydraulics. J.C. noted that the Veteran was not provided with adequate hearing protection. J.C. indicated that she reviewed the Veteran's military service treatment records and found no evidence of hearing evaluations being conducted upon entrance into or exit from service. She indicated that, based on her interview with him regarding his noise exposure in the military and review of his military service records, it is at least as likely as not that his hearing loss and constant chronic tinnitus was caused by or contributed to by noise exposure which occurred in military service. In a February 2012 lay statement, D.B. indicated that he has known the Veteran since 1971. He stated that he noticed that the Veteran had a tough time hearing. D.B. indicated that he would have to repeat himself and that the Veteran would not catch everything. In another February 2012 statement, B.C. indicated that he met the Veteran in 1971 when he was just out of the Navy. B.C. stated that he immediately observed a loss of hearing. The lay statements regarding the Veteran's hearing loss are not sufficient to establish that the Veteran had a hearing loss disability in 1971 when he separated from service. D.B. and B.C. are competent to report what they observed regarding the Veteran's hearing difficulties. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The record does not establish that these lay persons possess a recognized degree of medical knowledge and they are not competent to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a diagnosis of hearing loss or tinnitus and whether there is a medical nexus between the current hearing loss and tinnitus and service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). At the Board hearing, the Veteran testified that he was a quartermaster in service and that his duties included steering. The Veteran stated that he was in constant noise in service from steering and from jet engines. The Veteran is competent to report his noise exposures in service. The Veteran testified that he has had tinnitus since he got out of the Navy. He testified that, when he was discharged, a doctor on the ship advised him that his hearing was substandard. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Lay evidence can also 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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the Veteran's assertions that his hearing loss and tinnitus began in service and that his hearing loss continued while in service and following service, the Board finds that, while the Veteran is competent to report the onset of his hearing loss and tinnitus, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements as to chronic hearing loss and tinnitus symptoms in service and continuous hearing loss and tinnitus symptoms after service are not credible because they are outweighed by other evidence of record that includes the absence of in-service hearing loss and tinnitus complaints or symptoms; clinical examination at the service discharge examination at which puretone thresholds showed improvement as compared to those recorded at service entrance, and during which the examiner did not note any history or findings of ear problems; the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss and tinnitus until 1999. In weighing the Veteran's statements of continuity of symptomatology made in conjunction with the current claim for VA compensation against the lack of continuity of symptomatology in the record from 1971 to 1999, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for nearly 30 years is also one additional factor, along with other lay and medical evidence stated above, that the Board has considered in finding that the Veteran's recent statements of continuity are less probative than the other evidence of record on the question of continuity of symptomatology after service. See Buchanan, 451 F.3d at 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). In this case, the Veteran testified that he had hearing loss at separation and has had tinnitus since service. The Veteran has not been consistent with regard to his report of onset of hearing loss and tinnitus in service. The Veteran did not report any hearing loss or tinnitus complaints at separation from service. In this Veteran's initial claim for service connection for hearing loss and tinnitus in August 2001, he did not state when hearing loss and tinnitus had their onset. The August 2002 VA examination noted a complaint of occasional bilateral tinnitus but did not indicate the date of onset. In written statements in support of his claim, including statements dated in June 2002, August 2008 and April 2010, the Veteran indicated that he was exposed to jet noise in service and had hearing loss, but he did not specifically state that his hearing loss or tinnitus symptoms were continuous since service. The Veteran denied tinnitus symptoms at the 2009 VA examination. Therefore, these inconsistencies weigh against the Veteran's testimony of continuous hearing loss and tinnitus since service and is not credible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service chronic hearing loss and tinnitus and post-service hearing loss and tinnitus symptoms and thus continuity of hearing loss and tinnitus is not shown. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed bilateral hearing loss and tinnitus are not related to his active service, including the noise exposure during service. In this case, there are conflicting medical opinions regarding the etiology of hearing loss and tinnitus. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. The October 2007 private audiologist lacks probative value, as the audiologist opined that the Veteran's current hearing loss "may be due in part" to his noise exposure in the Navy. This opinion is speculative and is therefore not probative regarding the etiology of hearing loss. See Obert at 33. (a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative). Although the audiologist who provided the March 2012 opinion indicated that she reviewed the service records, she incorrectly noted that the Veteran did not have a hearing evaluation at entrance or at separation. As discussed above, audiograms were performed at entrance and at separation. The March 2012 private opinion is based upon an inaccurate factual premise and is therefore not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). The August 2002 and November 2009 VA examinations are of greater probative value in this case. In contrast to the private audiologists, the VA examiners reviewed and specifically discussed the service audiograms in forming their conclusions. The November 2009 VA opinion is highly probative, as the VA examiner discussed scientific research regarding delayed onset hearing loss, providing a more thorough rationale than that private opinions. To the extent that the Veteran asserts that the current hearing loss and tinnitus are related to service, the record does not establish that he possesses a recognized degree of medical knowledge and he are not competent to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a diagnosis of hearing loss or tinnitus and whether there is a medical nexus between the current hearing loss and tinnitus and service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Based on the evidence of record, the weight of the competent credible and probative evidence demonstrates no relationship between the Veteran's current bilateral hearing loss and tinnitus and his military service, including no credible evidence of continuity of symptomatology of hearing loss and tinnitus; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for bilateral hearing loss and tinnitus, and outweighs the Veteran's more recent contentions regarding in-service chronic symptoms and post-service symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 . ORDER New and material evidence having been submitted, the claims for service connection for bilateral hearing loss and tinnitus are reopened; to this extent, the appeal is allowed. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs