Citation Nr: 1316501 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-33 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from August 25, 1977 to September 27, 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO denied service connection for right ear hearing loss and right ear tinnitus. The claims for service connection for hearing loss and tinnitus have since been considered in regard to both ears and, accordingly, are characterized as reflected on the title page. In July 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In November 2012, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing the additional development, the AMC continued to deny the claims (as reflected in a February 2013 supplemental statement of the case (SSOC)), and returned these matters to the Board. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the AMC in the February 2013 SSOC. Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Bilateral hearing loss was noted on the Veteran's July 1977 pre-enlistment examination. 3. The Veteran's pre-existing bilateral hearing loss was not aggravated by active military service. 4. The Veteran's tinnitus is not related to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for bilateral hearing loss are not met or approximated. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). 2. The criteria for the establishment of service connection for tinnitus are not met or approximated. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. The Veteran's claim for service connection was received in September 2007. The Veteran was provided notice of what evidence was required to substantiate his claims for service connection for right ear hearing loss and right ear tinnitus, and of his and VA's respective duties for obtaining evidence in correspondence dated in October 2007. The claims were reviewed and the January 2008 rating decision was issued. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in the October 2007 letter. As will be discussed below, the claim for service connection for hearing loss is being addressed as a claim for service connection on the basis of in-service aggravation. Although the Veteran was not provided a separate notice letter informing him of the elements of a claim for service connection on the basis of aggravation, the October 2007 letter informed him that the first element of a claim for service connection was evidence that he "had an injury in military service or a disease that began in or was made worse during military service." Therefore, the Board finds that there was no error in the notice provided and that VA has met its duty to notify the claimant per 38 U.S.C.A. § 5103(a). See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007)((in substance, observing that 38 U.S.C.A. § 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case, though it necessarily must be tailored to the specific nature of the Veteran's claim, and need not describe the VA's evaluation of the Veteran's particular claim). The October 2007 notice letter identified the issues for consideration as entitlement to right ear hearing loss and right ear tinnitus and the Veteran has not been provided an additional notice letter which advises him of the information and evidence necessary to substantiate claims for service connection for bilateral hearing loss and tinnitus. Nevertheless, the elements of a claim for service connection, whether in regard to right ear hearing loss and right ear tinnitus, or bilateral hearing loss and tinnitus, (the existence of a current disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the current disability and the disease or injury incurred or aggravated during service) are the same. See 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))). Notably, the Veteran has been represented by an accredited representative during his appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). The Veteran has clearly had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. Remand to send the Veteran another notice letter which identifies the issues for consideration as entitlement to service connection for bilateral hearing loss and tinnitus is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The Board observes that neither the August 2009 SOC nor the February 2013 SSOC included citation to 38 C.F.R. § 3.306, the pertinent regulation regarding service connection based on aggravation. The absence of specific citation to 38 C.F.R. § 3.306 in an SOC or SSOC, in this case, is harmless error. The August 2009 SOC did note that, in order to establish service connection, the evidence needed to show that the claimed condition was incurred in or aggravated by service. The February 2013 SSOC stated that, in order to establish service connection for the claimed disorder, there had to 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability." In the August 2009 SOC, the RO noted that right ear hearing loss was shown on enlistment examination in July 1977. As noted above, the Veteran has been represented by an accredited representative during his appeal and has clearly had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. See Overton, 20 Vet. App. at 438. The absence of specific citation to 38 C.F.R. § 3.306 in an SOC or SSOC, in this case, is harmless error and remand for issuance of a new SSOC is not warranted. See Soyini, 1 Vet. App. at 546; Sabonis, 6 Vet. App. at 430. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records and VA treatment records have been obtained and associated with his claims file and Virtual VA e-folder. The Veteran was also provided with a VA examination to evaluate his claimed disability in December 2012. The VA examiner provided a supplemental medical opinion in February 2013. The claims for service connection were remanded in November 2012 in order to allow the Veteran the opportunity to provide sufficient information and authorization to enable VA to obtain any pertinent outstanding treatment records, to particularly include treatment records from Dr. Brown and St. Mary's Hospital, as identified during the November 2012 hearing. In a November 2012 letter, the AMC advised the Veteran that it was working on his claims for service connection for hearing loss and tinnitus, and asked that he provide the names, addresses, and approximate dates of treatment for any private healthcare providers who had treated him for hearing loss and tinnitus since service. In particular, the AMC asked that the Veteran provide this information in regard to Dr. Brown and St. Mary's Hospital. The Veteran was informed that he should complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for each health care provider so that VA could obtain his treatment records. The Veteran did not provide any information regarding private treatment in response to this letter, and he has not provided any releases to enable VA to obtain treatment records. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As the Veteran has not provided release forms to enable VA to obtain private treatment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted. The Board notes that VA treatment records reflect that, in addition to receiving VA treatment, the Veteran has a private primary care provider, Dr. Gambrah; however, the Veteran did not name this physician as someone who had provided care for his hearing loss or tinnitus. Moreover, as just discussed, the Veteran was specifically instructed to identify and provide necessary authorization to allow VA to obtain private treatment records regarding his claims and he has not subsequently identified any private healthcare providers nor has he provided any releases. No further action in regard to obtaining private treatment records is warranted. The claims were also remanded in November 2012 to afford the Veteran a VA examination to determine the nature and likely etiology of the Veteran's claimed hearing loss and tinnitus. The Veteran was subsequently afforded a VA examination in December 2012. Because the claims file was not available at the time of examination, the examiner provided an etiological opinion in a February 2013 addendum, after she had the opportunity to review the claims file. The December 2012 VA examination and February 2013 addendum provide pertinent findings and medical opinions addressing the etiology of the Veteran's claimed hearing loss and tinnitus and, taken together, are responsive to the questions posed in the November 2012 remand, and include a basis for the examiner's opinion. Thus, the December 2012 VA examination and February 2013 addendum are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). For all the foregoing reasons, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has also considered that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned Veterans Law Judge advised the Veteran that, in order to establish service connection for hearing loss, the evidence needed to show that it was sustained or aggravated during service, which was not shown by the evidence then of record. The undersigned suggested the submission of additional evidence, specifically, a doctor's opinion, to substantiate the claim for service connection. The undersigned Veterans Law Judge did not specifically discuss the criteria necessary to establish service connection for tinnitus. However, the Veterans Law Judge and the Veteran's representative did ask questions pertinent to the relationship between the Veteran's current tinnitus and service. Although the Veterans Law Judge did not specifically seek to identify any relevant evidence that was not associated with the claims file in regard to tinnitus, such was not necessary because the Veteran volunteered his treatment history and symptoms. As the Veteran's testimony addressed the relationship between his current tinnitus and service, the question for consideration in adjudication of that claim, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for that disability. Accordingly, the Veteran is not shown to be prejudiced in regard to any deficiencies in the July 2012 hearing. Moreover, neither the Veteran nor his representative has alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the development of the Veteran's claims discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. The Merits of the Claims The Veteran asserts that he has hearing loss and tinnitus related to in-service noise exposure. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from 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). 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 disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker, 708 F.3d at 1333. 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 F.3d 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 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. 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 held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338. 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 the "nexus" requirement of the three-element test must be met. Id. at 1338-39. Sensorineural hearing loss is an organic disease of the nervous system under section 3.309(a); therefore, the provisions of subsection 3.303(b) for chronic disabilities apply. Walker, 708 F.3d at 1338. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). This presumption is not applicable where, as here, the Veteran had less than 90 days of service. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Generally, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Considering the pertinent evidence of record in light of the law, the Board finds that the preponderance of the evidence is against the claims and service connection for hearing loss and tinnitus is not warranted. Service treatment records reflect that, in his July 1977 Report of Medical History prior to enlistment, the Veteran denied hearing loss and ear, nose, or throat trouble. On pre-enlistment examination that date, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 Not tested 35 LEFT 5 5 5 Not tested 40 He was referred for an ear, nose, and throat (ENT) consultation. He was afforded an ENT consultation later in July 1977 for suspected hearing loss. The physician noted that the Veteran had "normal audio" after two tests. He had poor reliability on the first examination with multiple false positives, but after being made aware of the exaggerated responses, he tested normal. The impression was normal ear, nose, and throat examination. Despite the July 1977 ENT consultation indicating normal hearing, the actual audiometric test results are of record, and reflect pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 40 LEFT 10 5 5 30 35 These results are noted to be test number 2, and the audiologist commented that the Veteran had initially attempted to exaggerate the thresholds at the left ear in test number 1 (which is not of record). The Veteran was found to be qualified for enlistment into service. Ten days after entry into service, the Veteran presented to the emergency room with complaints of an ear ache. The physician noted that the Veteran had been discharged from "6E" one day earlier with a diagnosis of left otitis media and was on ear drops. The pertinent impression was otitis media. He returned to the troop medical clinic a few days later with complaints of continued left ear pain. He claimed that he could not train and stated that the medicine was not helping. He was, again, referred to the ENT clinic. The requesting physician's assistant indicated that he suspected the Veteran of malingering. During the September 1977 ENT consultation, the Veteran gave a history of aching in his left ear since elementary school. He denied any complaints of tinnitus, but did describe decreased hearing on the left. Audiological examination revealed very mild left ear sensorineural hearing loss. The impression was ear pain of unknown etiology. Audiometric testing performed in conjunction with the September 1977 ENT consultation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 Not tested 35 LEFT 25 20 15 Not tested 20 Post-service VA treatment records, dated from August 2007 to February 2013, note a complaint of ringing in the ears in August 2007. The Veteran denied hearing loss at that time. In January 2008, the Veteran reported a chronic right ear ache for 30 years. The pertinent assessment was right ear ache and the Veteran was referred to the ENT clinic. He was seen in the otolaryngology clinic the following month. He denied hearing loss at that time. Examination revealed pain at the right temporomandibular joint upon palpation and opening of the jaw. The assessment was right otalgia, most likely referred ear pain secondary to the right temporomandibular joint. The VA treatment records do not document any additional complaints regarding or treatment for hearing loss or tinnitus. Rather, the Veteran denied ear problems during treatment in December 2011 and August and November 2012. During the July 2012 hearing the Veteran testified that he sustained an injury to his right ear when a drill sergeant blew a whistle right beside his ear. He described ringing in his ears following this incident, and added that he was hospitalized but received no treatment other than ear drops. The Veteran testified that he still had ringing in his ears which had never stopped since service. He also described in-service noise from the firing range and reported that he was not issued ear plugs for the firing range. The Veteran stated that he did not recall ever having hearing loss before entry into service. The Veteran was afforded a VA audiological examination in December 2012. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 35 65 LEFT 15 15 20 25 55 Speech recognition scores on the Maryland CNC Word List were 100 percent in the right ear and 96 percent in the left ear. The diagnosis was sensorineural hearing loss in the range of 500 to 4000 Hertz, bilaterally. The Veteran also reported recurrent tinnitus, with an onset in service when a whistle was blown behind him during basic training. He reported that he constantly heard noises in the right ear only. The examiner indicated that the claims file was not available and, therefore, she could not provide a medical opinion regarding the claimed hearing loss and tinnitus. After she was given an opportunity to review the claims file, the VA examiner provided an addendum opinion in February 2013. She stated that the Veteran enlisted into service with hearing loss, noting that his enlistment examination in July 1977 revealed a mild high frequency hearing loss, bilaterally, at 4000 Hertz. She then went on to opine that the Veteran's hearing loss was less likely than not related to his military noise exposure. She observed that the Veteran had multiple hearing screens in a two month period due to inconsistent and elevated responses during testing; however, the July 1977 enlistment examination and the September 1977 audiogram revealed "NO significant shift in hearing." She commented that, although multiple tests were needed to obtain reliable responses, when the responses were obtained, the two tests revealed no significant difference. Thus, based on the fact that the Veteran's hearing did not significantly change from enlistment to discharge, and his minimal noise exposure, she opined that his hearing loss was not related to his military noise exposure. Regarding tinnitus, the examiner acknowledged the Veteran's report of the onset of tinnitus when his sergeant blew a whistle behind his head during training, but opined that his tinnitus was less likely than not related to military noise exposure. In providing a rationale for her opinion, she noted that the Veteran denied tinnitus in September 1977 and there was no significant shift in the Veteran's hearing from enlistment to discharge. Based on the fact that he denied tinnitus near discharge from service, he had minimal noise exposure in service, and there was no significant shift in hearing from enlistment to discharge, she concluded that it was less likely than not that the Veteran's tinnitus was related to military noise exposure. The record reflects that the Veteran has current bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385, as well as current tinnitus. Thus, the first element of each claim for service connection, a current disability, is satisfied. While the Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma, he is competent to assert the occurrence of in-service injury, to include in-service noise exposure from a whistle being blown near his ear and from the firing range. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds these reports of noise exposure to be credible. Regarding the claimed hearing loss, the evidence reflects that this disability was noted at entry into service. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Despite the conclusion of the physician who performed the July 1977 ENT consultation, that audio testing was normal, audiometric testing performed in conjunction with that consultation revealed right ear hearing loss as defined by 38 C.F.R. § 3.385 and left ear hearing loss as defined by Hensley. The earlier audiometric testing, performed on pre-enlistment examination testing in July 1977 revealed right ear hearing loss as defined by Hensley and left ear hearing loss as defined by 38 C.F.R. § 3.385. The conclusion that the Veteran had bilateral hearing loss prior to enlistment into service is further supported by the VA examiner's February 2013 opinion, that the Veteran had a mild bilateral high frequency hearing loss at 4000 Hertz when he enlisted into service. This opinion was based on review of the record. Thus, bilateral hearing loss was noted at the time of examination, entrance, and enrollment, and the presumption of soundness does not attach. As the presumption of soundness does not apply in regard to the claim for service connection for hearing loss, the evidence must establish that aggravation of the Veteran's bilateral hearing loss occurred during service. Here, the preponderance of the evidence demonstrates that the Veteran's pre-existing bilateral hearing loss was not aggravated by service. The Board acknowledges that there was a slight increase in pure tone threshold levels at some levels in September 1977, as compared to the pure tone threshold levels found on audiometric testing in July 1977. For example, in regard to the right ear, the pure tone threshold level increased at 1000 and 2000 Hertz. In regard to the left ear, the pure tone threshold level increased at 500, 1000, and 2000 Hertz. However, the pure tone threshold level at 4000 Hertz in the left ear decreased. In any event, the VA examiner acknowledged review of the claims file, which includes the in-service audiograms, and specifically found that there was NO significant shift in hearing between the testing performed in July 1977 and September 1977. (Emphasis in original). The February 2013 opinion, that there was no significant shift in hearing between July and September 1977, is highly probative regarding the question of whether the Veteran's pre-existing hearing loss increased in severity during service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The examiner formed her opinion after interview with and examination of the Veteran as well as review of the claims file. Her opinion was also supported by a clearly-stated rationale. Significantly, this examiner concluded that the Veteran's hearing loss was less likely than not related to his military noise exposure. Thus, the only competent, probative (persuasive) opinion on the question of whether the Veteran's current hearing loss was aggravated during service weighs against the claim for service connection. The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection. Regarding the claim for service connection for tinnitus, this condition was not noted at entry into service, nor is there any indication that it existed prior to service. Accordingly, the question for consideration is whether the Veteran's current tinnitus is related to service, to include in-service noise exposure. Despite the Veteran's July 2012 testimony that he had had ringing in his ears since service, the Board notes that, during service, the Veteran denied tinnitus in September 1977, apparently after his reported noise exposure. This medical record is highly probative as it was generated with a view towards ascertaining the Veteran's then-state of physical fitness and is akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history). Moreover, while the Veteran reported tinnitus during VA treatment in August 2007, he denied ear problems in December 2011, August 2012, and November 2012. These records call into question the credibility of the Veteran's report of a continuity of symptomatology of tinnitus since service. In any event, service connection for tinnitus based on chronicity or continuity of symptomatology is not for consideration, as it is not a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1338. Service connection on a direct basis, then, must be established by evidence of a nexus. The VA examiner's February 2013 opinion is dispositive of the question of whether the Veteran's current tinnitus is related to service, as the examiner's findings were based on interview with and examination of the Veteran as well as review of the claims file. Her opinion, that the Veteran's tinnitus was less likely than not related to military noise exposure, was supported by a clearly-stated rationale. Specifically, she noted that the Veteran denied tinnitus near discharge from service, he had minimal noise exposure in service, and there was no significant shift in hearing from enlistment to discharge. The examiner's opinion regarding a relationship between the Veteran's tinnitus and service is highly probative. See Hayes, 5 Vet. App. at 69-70. See also Guerrieri, 4 Vet. App. at 470- 71. Thus, the only competent, probative (persuasive) opinion on the question of whether the Veteran's current tinnitus is related to service weighs against the claim for service connection. The Veteran has not presented or identified any existing, contrary medical opinion that, in fact, supports the claim for service connection. In addition to the medical evidence, the Board has considered the Veteran's assertions that he has hearing loss and tinnitus related to service. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as concerning a form of cancer. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this axiom in a claim for rheumatic fever); 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 VA's duty to seek a medical opinion on the issue). The Veteran does not have or claim to have any specialized knowledge in the field of medicine. The Board therefore finds that the etiology of his hearing loss and tinnitus is beyond his competence. Moreover, the question of etiology of these conditions is complex in nature. Therefore, to the extent he has asserted that he has hearing loss and tinnitus related to service, the Board finds such assertions to be of little probative value, especially in relation to the February 2013 VA examiner's opinions, as the Veteran is not competent to opine on these complex medical questions. His contentions regarding etiology of his current hearing loss and tinnitus are outweighed by the medical evidence of record, specifically the opinions of the February 2013 VA examiner. The preponderance of the evidence is against the claims and the appeal will be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. (CONTINUED ON NEXT PAGE) ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs