Citation Nr: 1313997 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 08-38 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to October 1966. This appeal to the Board of Veterans' Appeals (Board) is from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2008 the Veteran had a VA compensation examination concerning these claims and, as further support for them, he and his wife later testified at a hearing at the RO in San Antonio, Texas, in July 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. The Board subsequently in August 2012 remanded these claims to the RO via the Appeals Management Center (AMC) so the VA audiologist who had examined the Veteran in September 2008, if still available, could review the file and provide additional comment (a supplemental opinion) concerning the etiology of the Veteran's bilateral hearing loss and tinnitus. In particular, this examiner was to consider any potential relationship or correlation between the Veteran's current hearing loss and/or tinnitus and his treatment during service in June 1966 for complaints of earache and loss of hearing in his right ear with a resultant diagnosis of right external otitis. The examiner also was to consider the Veteran's and his wife's July 2012 hearing testimony indicating he has experienced difficulty hearing and tinnitus since service, so continuity of symptomatology, and not just since 1989 or thereabouts as concerning the tinnitus specifically. The AMC obtained this addendum opinion in September 2012 and, after considering it, continued to deny these claims in a January 2013 supplemental statement of the case (SSOC), so they are again before the Board FINDING OF FACT The preponderance of the evidence shows the Veteran's sensorineural hearing loss and tinnitus first manifested many years after his service and are unrelated to his service, including especially to the right ear otitis externa he had in service and any noise exposure from weapons or aircraft or other machinery, etc. CONCLUSION OF LAW The Veteran's sensorineural hearing loss and tinnitus are not the result of disease or injury incurred in or aggravated by his military service, and the sensorineural hearing loss also may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Prior to considering the merits of this appeal, the Board must determine whether VA has met its statutory and regulatory duties to notify and assist him in the development of these claims. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met these obligations. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and any medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status; 2) existence of a current 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F. 3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. In this particular case at hand, in May 2006 VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of his application. Following the receipt of his application, VA notified him of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him as well as the evidence VA would attempt to obtain for him. VA informed him of the requirements for establishing his entitlement to service connection for these alleged disabilities, also of the "downstream" disability rating and effective date elements of his claims in the event service connection eventually is granted. VA also fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate these claims. VA obtained or ensured the presence of the following relevant evidence: his service treatment and personnel records; the report of a May 1982 VA general medical examination; the report of his audiometric testing performed in October 1999 by the Western Arkansas ENT and Audiology Clinic; records reflecting his VA treatment from February 2006 to January 2007; his records from the Social Security Administration (SSA); and the transcript of his July 2012 hearing at the RO before the undersigned VLJ of the Board. The hearing transcript shows the presiding VLJ conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issues and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding VLJ identified the material issues, asked the Veteran whether he believed his VA compensation examination in September 2008 had been fair and fully informed, asked that he confirm he had experienced no additional noise exposure since service, and at the end of the hearing asked he and his wife whether either had anything else to add in support of the claims. In so doing, the presiding VLJ elicited testimony from them regarding the Veteran having had excellent ear protection in jobs since service. As such, the Board finds that the presiding VLJ's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the conducting of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). As also already alluded to, in September 2008 the Veteran was examined for VA compensation purposes in relation to these claims to determine the nature and etiology of his hearing loss and tinnitus in terms of any potential relationship between these conditions and his military service. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because, however, the Board determined the opinion provided at the conclusion of that evaluation was inadequate, the Board remanded these claims in August 2012 to have that examiner or another VA examiner provide a supplemental opinion, which was provided in September 2012 and sufficiently addresses the determinative issue of causation. So yet another examination and opinion are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA endeavors to provide an examination for a medical nexus opinion in a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate examination and opinion or, at minimum, notify the claimant why they cannot be provided). Collectively considering the examination and addendum opinion, there is confirmation the examiner reviewed the Veteran's relevant medical history, interviewed and examined him, and documented the history so the opinion is fully informed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of the appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one to in turn permit determining what weight to assign the doctor's opinion). The examiner also, perhaps even more importantly, provided detailed analysis and reasons and bases for his conclusions, which is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board therefore is satisfied there has been compliance with its remand directives, including this particular directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating the Veteran is entitled, as a matter of law, with compliance with a remand directive and that the Board itself commits error in failing to ensure this compliance). But see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total" compliance with a remand directive). In sum, then, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA [Veterans Claims Assistance Act] is reason to remand many, many claims, but is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). The Veteran has received all essential notice and assistance with these claims, has had a meaningful opportunity to participate effectively in their development, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004). Analysis During his July 2012 Travel Board hearing, the Veteran testified that he had a hearing loss disability and tinnitus primarily as the result of noise exposure during his military service in various capacities, including from heavy machinery such as generators and trucks as well as from weapons fire. He said he had experienced difficulty hearing and chirping sounds in his ears ever since his military service. His wife provided supporting testimony, indicating she had known him since 1976, had been married to him since 1977, and that it had been very apparent from the outset of their relationship that he had experienced ongoing hearing loss and tinnitus. These were the reasons for them believing the hearing loss and tinnitus are attributable to his service and date back to his service. When the Veteran was earlier examined for VA compensation purposes in September 2008, the examiner noted the Veteran's complaints included constant chirping in his ears (i.e., tinnitus). He reported having an ear infection in his left ear in 1999, but denied having ear surgery or a head injury. He added that, during service, he was in a maintenance battalion that did supply work, and that he was exposed to noise from gunfire, mortar rounds, diesel tractors, machinery, and helicopters. He reported that, following service, he had been doing maintenance work and had owned a polyurethane and fiberglass company, which also admittedly had involved exposure to noise from the machinery. But he steadfastly discounted any notion that the amount of noise exposure he had had since service was anything remotely near the level or amount of noise exposure he had experienced in service. As for his tinnitus, he reported the onset date as approximately 10 years prior to an ear infection in 1999, so in 1989 or thereabouts. He stated that the tinnitus had worsened since that time and that his hearing loss disability was constant. That September 2008 VA compensation examiner ultimately concluded against these claims, however, indicating based on his review of the Veteran's STRs that it was less likely than not his hearing loss was related to his military service. This VA examiner cited hearing well within normal limits during the Veteran's induction physical, as well as on his separation physical, as reason for disassociating any current hearing loss from his military service and, in particular, from any acoustic trauma that he may have sustained during his service. Also, based on information provided by the Veteran regarding the onset of his tinnitus, this VA examiner concluded it began many years following the Veteran's military service, so this VA examiner also concluded that it, too, was less likely than not related to the Veteran's military service. But during the more recent hearing before the Board in July 2012, the Veteran's representative questioned the validity of the results of the hearing evaluation that supposedly was provided the Veteran when separating from service, noting that "zeros" summarily were listed for all frequencies tested, as if there was not in fact an actual examination at time of discharge just, instead, what amounted to a "pencil whipping" or "rubber stamp" reporting of supposed findings. The representative therefore questioned how the VA compensation examiner could have relied on these supposed findings in disassociating the Veteran's current hearing loss from his military service since the results of that exit physical were not a true measure of his hearing acuity when separating from service. Indeed, the Veteran outright denied having been provided a hearing evaluation of any sort when separating from service. These disputes with the September 2008 VA examination and opinion, including the underlying bases of it, were the reasons the Board remanded these claims in August 2012 for the supplemental comment that since has been obtained in September 2012. And after considering the Veteran's claims in light of the entire record and applicable law, including this most recently obtained opinion, the Board unfortunately finds that the preponderance of the evidence is against his claims, so they regrettably must be denied. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Organic diseases of the nervous system will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Because however the Veteran has been diagnosed with sensorineural hearing loss, so a particular type of hearing loss, and since sensorineural hearing loss is an organic disease of the nervous system for purposes of section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology since service. By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system". Moreover, the Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. But consider also that, according to 38 C.F.R. § 3.303(b), if the condition at issue was not "noted" during service, this notion of continuity of symptomatology since service does not apply. In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. See also Baldwin v. West, 13 Vet. App. 1, 8 (1999). As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also 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"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). In deciding claims, the Board must assess the credibility and weight of all the evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When the evidence is in relative equipoise, he prevails. See Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran many years later, long after the fact. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Also, medical evidence that is speculative, general or inconclusive in nature cannot support a claim insofar as establishing the posited relationship between the claimed disability or disabilities and the Veteran's military service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). As specifically concerning claims of entitlement to service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered a ratable disability 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 threshold for at least three of these frequencies 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. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service, as opposed to other unrelated factors ("intercurrent causes"). Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley, 5 Vet. App. at 159. Turning now to the facts of this particular case. The Veteran's service treatment records (STRs), including the reports of his military entrance and separation examinations, are entirely unremarkable for any complaints or clinical findings suggestive either of hearing loss or tinnitus. During his November 1964 entrance examination, he responded "No" when asked whether he then had or ever had had ear, nose, or throat (ENT) trouble or running ears. Audiometric testing revealed the following pure tone thresholds, in decibels, at the indicated frequencies and Hertz levels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 5 (15) 5 (15) 10 (15) LEFT 5(20) -5 (5) -5 (5) -5 (5) 0 (5) Speech audiometry was not performed. Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. 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, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The results of that testing show the Veteran's hearing acuity was within normal limits when entering service, so it is presumed he was in sound health when entering service and did not have any pre-existing hearing loss or, for that matter, any tinnitus either. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In June 1966, he reported a 3-day history of an earache and a loss of hearing in his right ear. The treating health care provider subsequently diagnosed right external otitis following objective clinical evaluation. However, there was no pus, and the Veteran's tympanic membrane (eardrum) was intact. Medication was prescribed, including antibiotics, to cure the ear infection. Thereafter, there were no subsequent complaints or clinical findings for the remainder of the Veteran's service of an ear-related disorder of any kind or sort, including any further problems with otitis externa of his right ear. The same is true of tinnitus, as there were no complaints or findings concerning it either. During his October 1966 military separation examination, the Veteran did not have any relevant complaints, either of hearing loss or tinnitus, and there were no objective clinical findings of either condition. He also again responded "No" when asked whether he then had or ever had had ENT trouble or running ears. As well, he specifically denied having hearing loss. Audiometric testing revealed the following pure tone thresholds, in decibels, in the indicated frequencies and Hertz levels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Speech audiometry was not performed; however, those results show that at the time of his separation examination from service, his hearing acuity was still within normal limits. The Veteran and his representative's questioning of the veracity of those supposed findings at time of separation from service - especially given the across the Board 0's as compared to when earlier examined for enlistment - is not reason enough, alone, to entirely invalidate those findings, particularly since the Veteran also did not complain of hearing loss or tinnitus when separating from service. So that also must be borne in mind. And although he now contends that he has had hearing loss and tinnitus ever since his service, the objective clinical evidence does not support this notion and shows, instead, these disorders did not initially manifest until more than 30 years after the conclusion of his service in October 1966. Hearing loss was first confirmed by audiometric testing at the Western Arkansas ENT and Audiology clinic in October 1999, and tinnitus was first reported even more recently during an August 2005 VA Agent Orange protocol examination. And despite those diagnoses, there was suggestion either disorder had originated during the Veteran's military service or was otherwise related or attributable to his service. Moreover, the Board sees that, during an intervening VA examination in May 1982, his ears were found to be normal and the examiner specifically noted that hearing loss was not present. This tends to refute the notion that the Veteran had hearing loss during those earlier years prior to when it was actually confirmed. Indeed, such a long period of time following the conclusion of his service without any suggestion of hearing loss or tinnitus, combined with the intervening evidence that he did not have hearing loss, militates strongly against his claims. The Board may consider the absence of any indication of a relevant medical complaint until so relatively long after his service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Nevertheless, his contentions regarding continuing of symptomatology since service were sufficient to trigger the need for a VA examination and medical nexus opinion to assist in clarifying the nature and etiology of his hearing loss and tinnitus and any potential relationship between these conditions and his military service. When determining whether a VA compensation examination and medical opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). This VA compensation examination as mentioned took place in September 2008. And while confirming the Veteran has tinnitus and bilateral sensorineural hearing loss sufficient to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability by VA standards, the VA examiner nonetheless observed the Veteran's STRs were unremarkable for any suggestion of these conditions having incepted during his military service from November 1964 to October 1966. Moreover, according to this VA examiner, the Veteran reported that his tinnitus had begun just 10 years prior to a left ear infection in 1999, thereby placing the onset of his tinnitus in 1989 or thereabouts, so many years removed from his service. This time of inception, obviously, is in direct conflict with his more recent hearing testimony instead dating his tinnitus back to the time of his service. As such, it tends to impugn or undermine his credibility as to the time of onset of his tinnitus, although during his hearing before the Board he steadfastly denied ever having told the VA examiner that and was at a complete loss to explain or understand how then it could have been mysteriously indicated in the report of that evaluation as if he did. The Board nevertheless must make an express credibility finding regarding lay evidence, so including his and his wife's hearing testimony. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no inherent reason for that VA examiner to have reported anything other than what the Veteran told him during the course of that hearing evaluation. That examiner does not have any personal interest in the outcome of this appeal, whether favorable or unfavorable. Contemporaneous medical findings, both during service and since, are entitled to a lot of probative weight, especially as compared to evidence or testimony to the contrary offered many years later, long after the fact. Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report regarding the cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). Consider also that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In addition, the VA examiner opined that on the basis of the Veteran's normal hearing acuity in service, and the lack of relevant findings for so many years after service, it was less likely than not the present-day hearing loss and tinnitus were related or attributable to his military service or date back to his service. To establish his entitlement to service connection, there not only needs to be confirmation he has these claimed disabilities, but also attribution of these disabilities to his military service, which in this particular instance there clearly is not, only instead medical evidence steadfastly refuting this notion. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Board as mentioned remanded these claims in August 2012 to have that same VA examiner provide further comment or, if unavailable, to have someone else equally qualified do it. In February 2013, in response, the VA examiner reviewed the record and arrived at the same conclusions. In so doing, he specifically addressed the Veteran's complaints of hearing loss associated with the right otitis externa in service. He pointed out that otitis externa is a condition treatable by physicians and usually resolves with treatment. He acknowledged that a person could experience a temporary hearing loss associated with otitis externa but that it, too, would resolve with treatment of the otitis externa. And, in this particular instance, he did not find any further records showing hearing loss or tinnitus during the Veteran's service, presumably upon successful treatment in service of that right ear otitis externa. He also observed the Veteran's hearing acuity was within normal limits during his October 1966 military separation examination. He additionally acknowledged the wife's testimony that the Veteran had experienced hearing loss and tinnitus since she had known him in 1976, so since approximately 10 years after the conclusion of his service, which therefore would not necessarily date his hearing loss and tinnitus back to his service. But the examiner also considered it equally significant that the Veteran has worked since service at a steel foundry with a consequent potential for noise exposure also in that capacity, so in his civilian employment and not just during his military service, although the Veteran denies the extent of noise exposure in his civilian employment ever has approached the level or amount he had during his service. The fact remains, however, that there is no medical nexus evidence supporting these claims, only instead the unsubstantiated allegations of the Veteran and his wife. But hearing loss, especially since it has to be of a certain level to even qualify as an actual ratable disability according to 38 C.F.R. § 3.385, is not the type of "simple" condition that is readily amenable to probative lay comment regarding its diagnosis and etiology. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In this particular instance the Board did indeed obtain a medical nexus opinion, in fact two, but they are entirely unfavorable to this claim. Tinnitus, on the other hand, is "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). And, indeed, as already conceded, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The VA compensation examiner, however, associated the tinnitus with the hearing loss, so inasmuch as he determined the source of the hearing loss was unrelated to the Veteran's military service, so, too, is the tinnitus unrelated. For these reasons and bases, the most probative (meaning competent and credible) evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Instead, the preponderance of the evidence is against the claims, so they must be denied. ORDER The claims of entitlement to service connection for bilateral hearing loss and tinnitus are denied. _____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs