Citation Nr: 1317167 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-11 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1978 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a July 2008 RO hearing before a Decision Review Officer (DRO) and at a June 2010 Travel Board hearing before the Undersigned. Transcripts of both hearings are in the claims file. In November 2010, the Board vacated its September 2010 decision, granted the Veteran's petition to reopen for new and material evidence and remanded it for further development. The Board remanded this claim again in June 2012 for further development. It is now back before the Board for appellate review. FINDING OF FACT The Veteran's left ear hearing loss existed prior to active military service and was noted at entry, did not undergo an increase during active service, and was not otherwise aggravated by a disease, injury, or event during active service. CONCLUSION OF LAW Left ear hearing loss was not incurred in or aggravated by active service. §§ 1110, 1111, 1112, 1113, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements. See id. at 486; Quartuccio, 16 Vet. App. at 187. Here, prior to the initial rating decision in this matter, a June 2004 letter informed the Veteran of the requirements for establishing entitlement to service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf. In addition, an April 2006 letter notified the Veteran of all five elements of service connection, including the degree of disability and effective date elements, and satisfied all other notice requirements under the VCAA. Although this letter was not sent prior to initial adjudication of the Veteran's claim, the delay was harmless as the Veteran had an opportunity to respond with additional information and evidence before his claim was readjudicated in a Statement of the Case (SOC) issued in March 2007, as well as in several supplemental SOC's. See Mayfield, 499 F.3d at 1323. Therefore, the duty to notify has been satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and VA medical records are in the file. He has not identified any records that remain outstanding. He was sent a letter in November 2010 asking him to identify additional treatment for his hearing loss, and either to provide VA with sufficient information and authorization to request records of such treatment on his behalf, or to submit these records himself. However, he did not respond to this letter. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Here, a VA audiological examination was performed most recently in January 2011. The VA examination is adequate for the purpose of making a decision on this claim. In this regard, the examiner reviewed the claims file and medical history, conducted an examination of the Veteran and recorded the clinical findings, and provided a clear explanation for the opinion stated which is consistent with the examiner's findings and the credible evidence of record. Moreover, in a June 2012 addendum, the examiner provided an opinion responsive to the Board's remand directive to address whether a puretone threshold shift during active service represented an increase in hearing loss, and specifically stated that there was no significant shift in hearing during service. This opinion is sufficient for making an informed decision on this claim. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no apparent inconsistencies or ambiguities in the examination report, and the claimant has not challenged its adequacy or thoroughness, or the competency of the examiner, who is an audiologist. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. Accordingly, VA's duty to provide an adequate VA examination has been met. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Procedural Due Process A. Compliance with Board's Remand Directives The Board remanded this claim in November 2010 and June 2012 for further development. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the Board's remand directives to request the Veteran to identity any additional evidence pertaining to his claim, to provide a VA examination and obtain an opinion responsive to the Board's instructions, and thereafter to readjudicate the claim and issue a supplemental SOC have been satisfied, as shown in the above discussion regarding VA's duties to notify and assist under the VCAA. Thus, there has been substantial compliance with all of the Board's remand directives. See Stegall, 11 Vet. App. at 271; see also D'Aries, 22 Vet. App. at 105. B. Compliance with Bryant The Veteran testified at a June 2010 Board hearing before the undersigned and at a July 2008 hearing before a DRO. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Importantly, the Court observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. Here, the outstanding issue is whether the Veteran's left ear hearing loss was aggravated by active service. Although this issue was not explicitly identified for the Veteran at the Board and RO hearings, he had an opportunity to present testimony in support of his contention that his hearing loss was aggravated by in-service noise exposure from working with generators and in the surrounding of other noisy equipment, and that he first noticed left ear hearing loss during active service which has continued to the present time. Any deficiencies in the hearings under section 3.103(c)(2) were not prejudicial. Specifically, VA has otherwise developed this claim, including obtaining records on the Veteran's behalf and providing a VA examination which specifically addresses the outstanding issue in this case, as discussed above with regard to VA's duty to assist under the VCAA. The VCAA notice letters also informed the Veteran that there must be evidence showing a relationship between his current hearing loss and active service, and notified him of the types of evidence that could be submitted in this regard. Moreover, the Veteran did not raise any new issues pertaining to his claim at the hearing, and there is no indication of any outstanding evidence that may have been overlooked. See id. at 499. Thus, given the development undertaken by VA with respect to this claim, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. III. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was 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 Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (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))). 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). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). 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"). Specifically, 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 in a claim for arthritis or abnormal heart action in a claim for heart disease) 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 noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element 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). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). 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. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more 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). Id. Thus, if the claimed disability is not 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 satisfied in order to establish entitlement to service connection benefits. Id. For example, the Federal Circuit held in Walker 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 it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)). Id. at 1336-37, 1340. As will be explained in more detail below, because the Veteran's left ear hearing loss existed prior to active service and did not undergo an increase during that time, the issue of whether there was a continuity of hearing loss after service is irrelevant, as service connection may not be granted for a pre-existing disability that was not aggravated by active service. Impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection. Hensley at 157, 159. The evidence of record, including the June 2012 VA examination report, shows that the Veteran cannot hear at all out of the left ear. Accordingly, the requirement of a current hearing loss disability with respect to the left ear has been satisfied. See Shedden, 381 F.3d at 1166-67. Under 38 U.S.C.A. § 1111, "a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service." See also 38 C.F.R. § 3.304(b). Under 38 U.S.C.A. § 1153, "A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." In other words, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service, which can only be rebutted by clear and unmistakable (obvious or manifest) evidence. See id.; see also 38 C.F.R. § 3.306(b). However, aggravation 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 C.F.R. § 3.306(b). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). This presumption may be rebutted only by clear and convincing evidence. Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (observing, in pertinent part, that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities . . . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty."); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). The Veteran does not argue, and there is no evidence otherwise indicating, that he served in combat or that his hearing loss is a combat-related injury. Thus, the more relaxed evidentiary standard accorded combat-related injuries does not apply. See 38 U.S.C.A. § 1154(b). The Veteran served in telecommunications during active service, and stated at the Board hearing that he was exposed to hazardous noise from generators while performing daily preventative maintenance checks, and from teletypewriters. He denied wearing hearing protection. He also served as a Recreation Center Operator and a Staff Message Center Clerk, but does not contend that he had hazardous noise exposure from these military occupational specialties (MOS's). The Veteran's DD 214 reflects that he served as a Telecommunications Center Operator (72E), and a July 1978 service audiogram likewise reflects that the Veteran served in this MOS. The Department of Defense's Duty MOS Noise Exposure Listing does not mention this specific MOS, but reflects that most MOS's in telecommunications and signals involve low to moderate likelihoods of hazardous noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Moreover, a May 1979 service treatment record reflects that the Veteran's "hearing loss was discussed in relation to his job," and that he was having difficulty working in noise due to hearing loss and concern about sustaining hearing loss in his right ear. The consulting audiologist noted that the Veteran's concerns were "justified" because "auditory discrimination is decreased in a noise environment and there is a good possibility of sustaining a hearing loss in [the Veteran's] good ear as a direct result of noise exposure." Thus, the audiologist recommended that the Veteran "be removed from a noise environment." Based on the audiologist's notations in this treatment record and the Duty MOS Noise Exposure Listing indicating that some MOS's in telecommunications involve a moderate risk of hazardous noise exposure, doubt is resolved in the Veteran's favor as to whether he was exposed to hazardous noise during active service. See 38 C.F.R. § 3.102. There must still be competent evidence, however, that the Veteran's current left ear hearing loss is related to his in-service noise exposure. The evidence of record weighs against such a relationship, and rather shows that he had a pre-existing left ear hearing loss disability that was not aggravated by in-service noise exposure. Specifically, the December 1977enlistment examination report shows that the Veteran had hearing loss in the left ear severe enough to qualify as disabling under VA law. In this regard, the report reflects an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 55 55 60 70 65 These puretone thresholds show disabling hearing loss in the left ear at entry into active service. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. The Veteran's physical profile, or "PULHES" profile, in this report also reflects a numerical designation of "2" under "H," which means that the Veteran was found to have a hearing defect requiring some activity limitations. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (citing to then Army Regulation 40-501, Para. 9-3(b)(1)-(6), Change 35 (Feb. 9, 1987), now Para. 7-3(d)(2) (August 4, 2011)). Although the Veteran's hearing acuity was marked as normal in the "Clinical Evaluation" section on the front page of the examination report, the actual clinical findings on the second page make it clear that the Veteran's left ear hearing was noted as impaired. Notably, an April 1979 service audiological examination report states that the Veteran noticed hearing loss in 1975, which is several year prior to when he entered active service in January 1978. An April 1981 VA examination report also reflects that the Veteran reported left ear hearing loss since 1975, thus further confirming that his left ear hearing loss pre-existed active service. Because the Veteran's left ear hearing loss was noted at entry, he is not considered sound at entry with regard to his left ear hearing acuity, and service connection may only be granted for hearing loss based on aggravation due to an in-service disease, injury, or event, or a permanent increased during service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b). The preponderance of the evidence shows that the Veteran's left ear hearing loss did not increase during active service. In this regard, a July 1978 audiogram showed puretone thresholds for the left ear, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 70 70 60 60 60 An April 1979 audiogram showed puretone thresholds for the left ear, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 100 105 100 105 100 The Veteran was diagnosed in this record with profound unilateral hearing loss. The Veteran was put on physical profile due to his left ear hearing loss in April 1979. The physical profile record reflects that the Veteran was not to have exposure to noise exceeding 85 decibels without ear plugs or ear muffs, as he had a profound loss in his left ear and any damage to his right ear from noise exposure would severely handicap him. It was further noted that enforcing hearing protection for the Veteran was mandatory. An October 1979 service treatment record reflects that an audiologist's consultation was requested as to whether the Veteran's MOS should be changed due to a reported decrease in hearing loss. The Veteran had reported progressive left ear hearing loss which was "now complete." However, it was noted that the audiograms did not show a progression of hearing loss. In the December 1979 consultation report, the audiologist stated that the Veteran had a history of hearing loss since 1975, and that he was probably now deaf in the left ear. The audiologist also noted that audiometric results were erroneous due to a "masking error." The December 1980 separation examination report reflects an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 65 65 65 85 75 It was noted that the Veteran had a left ear hearing loss that was present on induction into active service. He was diagnosed with deafness in the left ear. His PULHES profile again reflected a designation of 2 under "H," for hearing. In the accompanying report of medical history, the Veteran stated that he sustained hearing loss in the left ear. A post-service VA audiogram dated in April 1981 reflects an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 110 110 110 / 110 The Veteran's puretone thresholds at 3000 Hertz were not recorded. The examiner diagnosed severe sensorineural hearing loss in the left ear, which was "apparently progressive." Masking numbers were reported of 55 to 70 at 500, 70 at 1000, 50 at 2000, and 70 at 4000 Hertz. A September 1984 reserve examination report includes an audiogram showing puretone thresholds for the left ear, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 55 60 55 55 55 Notably, these puretone thresholds are almost all lower than the puretone thresholds recorded in the Veteran's December 1977 enlistment examination, apart from a 5 decibel increase at 1000 Hertz. In January 2011, the Veteran underwent a VA audiological examination in connection with this claim. In the June 2012 addendum to the examination report, the examining audiologist discussed pertinent clinical findings in the service treatment records, including at enlistment and separation, as well as the 1984 post-service reserve examination report, and opined that the Veteran's left ear hearing loss was not related to active service. She explained that the Veteran entered active service with moderate to severe left ear hearing loss that remained unchanged during active service, and that there was no significant shift in hearing during this time. The opinion by the VA audiologist constitutes probative evidence that the Veteran's left ear hearing loss did not increase during active service, as it was authored by a medical professional and was based on a review of the Veteran's medical history and an audiological examination. Further supporting the examiner's opinion is the October 1979 service treatment record in which it was noted that the audiograms did not show a progression of left ear hearing loss. The Veteran has not submitted any competent evidence showing that his pre-existing left ear hearing loss increased during active service or was permanently aggravated by in-service noise exposure. His own opinion on this issue does not constitute competent evidence, as this is a medical determination that is too complex to be made based on lay observation alone, and thus can only be made by a person with appropriate medical expertise. 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); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (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, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's lay opinion is outweighed by the opinion of the VA audiologist. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469. Accordingly, because the Veteran's pre-existing hearing loss was not aggravated by active service, service connection may not be established. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b); see also Shedden, 381 F.3d at 1166-67. In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for left ear hearing loss must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for hearing loss of the left ear is denied. ____________________________________________ ROBERT O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs