Citation Nr: 1318479	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-05 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the military from February 1971 to February 1973.

This appeal to the Board of Veterans' Appeals (Board) is from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

As support for his claims, the Veteran testified at a videoconference hearing in September 2010 before the undersigned Veterans Law Judge of the Board.

In January 2011, the Board remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.  The additional development included especially:  1) obtaining additional medical treatment records - particularly from Dr. J. D. and the Speech and Hearing Center, notably from audiologist W. R., 2) obtaining the Veteran's civilian personnel records from the U. S. Postal Service (USPS), and 3) if necessary, obtaining an addendum medical nexus opinion.  The AMC later readjudicated the claims, but continued to deny them, in an August 2011 supplemental statement of the case (SSOC), so they were returned to the Board for further appellate consideration.

The Board again remanded the claims in November 2011, however, this time to have the VA compensation examiner provide still further comment in an additional supplemental medical nexus opinion.  The Board had found the prior opinion and even prior addendum opinion inadequate for reasons that were indicated.  The VA compensation examiner provided this additional opinion in March 2012 and, based on her additional findings, the AMC continued to deny the claims in an August 2012 SSOC, so they are again before the Board.



FINDINGS OF FACT

1.  The Veteran had hearing loss in both ears, so bilaterally, when entering service according to the results of his military induction examination, so there is no presumption of soundness insofar as the status of his hearing acuity when beginning his military service, and the most competent and credible, so ultimately probative, medical and other evidence of record indicates his pre-existing hearing loss was not permanently worsened during or as a result or consequence of his service beyond its natural progression.  There is not the required attribution of his hearing loss to his service.

2.  The preponderance of the evidence also weighs against finding that his tinnitus incepted during his service or is otherwise related or attributable to his service.


CONCLUSIONS OF LAW

1.  Hearing loss was not incurred or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012).

2.  Tinnitus also was not incurred in or aggravated by his service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104 (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 and every piece of evidence, certainly not in exhaustive detail.  See Gonzales, 218 F.3d at 1380-81.  The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claims.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  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.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, the Board is responsible for determining whether the evidence supports each claim or is in relative equipoise, meaning about evenly balanced for and against, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

The Veterans Claims Assistance Act (VCAA)

The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Ideally, this notice should be provided prior to an initial decision on the claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice since the intended purpose of the notice is still served and the Veteran 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 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that 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.  See also 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012).  So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements.  See id., at 486. 

But a VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, a VCAA notice letter sent in November 2007 informed the Veteran as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information, also indicated that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  The notice also provided information on the "downstream" disability rating and effective date elements.  As well, the notice was sent prior to the initial adjudication of his claims in April 2008, so in the preferred sequence.  The Board therefore finds that he has received all required notice concerning his claims.

The VCAA further provides that VA has a duty to assist him in the development of these claims.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  This duty includes assistance in obtaining service treatment records (STRs) and other pertinent medical records, VA and private, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim.  Id.

This duty to assist in the development of these claims has been satisfied.  The Veteran's service treatment records (STRs) and available post-service private medical records have been obtained, to the extent obtainable, and associated with his claims file for consideration in this appeal.  He has not indicated there are any additional outstanding records that should be obtained to support his claims, at least which, as mentioned, are obtainable.

He also was provided VA compensation examinations in January 2008 and July 2011, which the Board found inadequate for adjudicatory purposes.  Another addendum opinion resultantly was obtained in March 2012 and, unlike the prior opinions, this one is sufficient to decide these claims.  The same VA examiner authored the supplemental opinions, and in the second one she provided the necessary explanatory rationale supporting her conclusion that the Veteran's hearing loss and tinnitus are unrelated to his military service.  The opinion therefore has the necessary factual predicate and underlying medical rationale, which is where most of the probative value of a medical opinion is derived, not just from the conclusions ultimately reached.  See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board thus finds that the duty to assist in the development of these claims has been satisfied in terms of obtaining an examination and opinion.

With regards to the Veteran's September 2010 videoconference hearing before the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 
38 C.F.R. 3.103(c)(2) requires that a Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  Bryant, 23 Vet. App. at 488.  During the hearing, the parties agreed that the issues on appeal were for service connection for hearing loss and tinnitus.  The Veteran testified and presented evidence regarding noise exposure and his symptoms in service, including as to why they represented an increase in his hearing loss, even though its severity was not determined until years later.  He was questioned as to whether any medical practitioner had attributed his hearing loss and tinnitus to his service and, if so, whether those medical records could be obtained.  He and his representative clearly understood that he needed to establish the required nexus or correlation between his disabilities and military service, such as by establishing they incepted or increased in severity during his service, as their arguments and testimony were focused on these very points.  Hence, they evidenced their actual knowledge of the type of evidence and information needed to substantiate these claims.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can proceed to adjudicating these claims based on the current record.

The Board is satisfied the AMC complied with the Board's January and November 2011 remand directives, including in terms of obtaining the necessary additional medical opinion.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

As instructed, the AMC obtained an addendum medical opinion in July 2011, and even a supplemental opinion in March 2012 to that addendum opinion.  

As also instructed, the AMC attempted to obtain additional treatment records.

As the Board explained when initially remanding these claims in January 2011, before addressing these claims on appeal, additional development was required.  In particular, the AMC needed to try and obtain potentially relevant, but outstanding, private treatment and Federal agency records.

Towards assisting the Veteran in trying to establish the alleged cause-and-effect correlation between his current hearing loss and tinnitus and his military service, the AMC needed to try and obtain any outstanding, pertinent, private treatment records.  VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a).  Specifically, VA is required to make reasonable efforts to obtain relevant records, including private records that the claimant adequately identifies and authorizes VA to obtain.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  If after making such reasonable efforts VA is unable to obtain all of the relevant records sought, VA must so notify the claimant.  Id.  This notice must identify the records not obtained, explain the efforts made to obtain them, and describe any further action VA will take on the claim.  Id.  VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.  38 C.F.R. § 3.159(c)(1).

Here, on his October 2007 claim application (VA Form 21-526), the Veteran had identified treatment from three private providers that was potentially pertinent to his claims for service connection for bilateral hearing loss and tinnitus:  (1) Dr. J.Q., (2) Dr. J.D., and (3) the Speech and Hearing Center.  Unfortunately, it did not appear the RO had attempted to obtain all of these treatment records, even though they had been indicated as pertinent to the claims.  So attempts needed to be made to obtain these additional records before deciding this appeal, to comply with the duty to assist.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c).

Importantly, the Veteran had indicated that the June 2007 hearing examiner, audiologist W.R., of The Speech and Hearing Center, supposedly had provided a medical opinion supportive of the claims, to the effect that the current audiological disabilities may be related to the Veteran's military service.  See June 2007 claim.  Although the Veteran had submitted a June 2007 private audiogram from W.R. at The Speech and Hearing Center, there was not also a nexus opinion from this audiologist affirming this notion that the Veteran's bilateral hearing loss and tinnitus were attributable to his military service.  So there may have been additional audiological treatment records from W.R. that were highly pertinent to these claims.

Similarly, the Veteran had submitted a private treatment record from Dr. J.D., dated in February 1997, documenting treatment of ear aches.  But there again was no mention of the etiology of this disorder in terms of whether it was attributable to the Veteran's military service.  So there also may have been pertinent additional records from Dr. J.D., as well.

Of the remaining sources of treatment mentioned, during his then recent hearing the Veteran had acknowledged that Dr. J.Q. - who reportedly had treated him initially after service in 1975 or thereabouts, was now deceased, and therefore that his records were no longer available.  The Veteran further acknowledged in his hearing testimony that, although Dr. J.Q. had referred him to VA after diagnosing hearing loss, he had elected instead to go elsewhere because he did not want to use VA, and the records even concerning that referral hearing evaluation he had elsewhere also were no longer available.  So it was unnecessary to try and obtain these other records since any further attempts to obtain them, even by the Veteran's admission, would be futile.  38 C.F.R. § 3.159(c)(1).


Still, the AMC needed to attempt to obtain the report of a potentially outstanding audiological evaluation of the Veteran, reportedly provided in 1973, in the course of him beginning employment at the USPS.  See January 2008 VA audiological compensation examination report.  When, as here, VA is put on notice of the existence of relevant Federal agency records, VA must try and obtain these records before deciding the appeal as part of the duty to assist.  See 38 C.F.R. § 3.159(c)(2) and (3), (e)(1).

Indeed, he reported that he had been employed with the USPS since March 1973.  See June 2007 claim.  And although the January 2008 VA compensation examiner ostensibly had provided an unfavorable nexus opinion discounting the claims, that same examiner also specifically had recommended that the RO attempt to obtain the Veteran's personnel records from the USPS (Post Office) to ascertain whether these additional records documented any hearing loss in previous years, as the Veteran alleges he had.  Green v. Derwinski, 1 Vet. App. 121, 123-24 (1991) (noting that where an examiner states that additional records and/or diagnostic studies could be helpful in providing an opinion, remand for further development may be warranted). 

Subsequently, in a July 2009 letter, the RO incorrectly had informed the Veteran that he needed to complete and return a VA Form 21-4142 (VA Authorization and Consent form) to have the RO request the 1973 USPS audio evaluation.  But the USPS is a Federal agency and, as such, the Veteran did not need to submit an authorization and consent form to obtain these records.  See Jackson v. Shinseki, slip copy, No. 08-1747 (U.S. Vet. App., April 30, 2010) (Veterans Court treated USPS as a Federal agency in context of VA fulfilling its duty to assist).  So it did not appear the RO had attempted to obtain the Veteran's USPS personnel records, including all medical records pertaining to audiological evaluations, especially any performed in the course of obtaining employment in 1973.  Consequently, attempts also needed to be made to try and obtain these other potentially relevant records.

Accordingly, the claims were REMANDED in January 2011 for that additional development and consideration.

To expedite the processing of his claims, and in response to the AMC's February 2011 development letter, the Veteran himself later submitted a statement in March 2011 along with a copy of the June 2007 hearing evaluation by W. R. (Wendy Richardson), Clinical Audiologist and case manager for The Speech and Hearing Center.  Also submitted was a copy of a record from the Lakeside Medical Center, with particular reference to an evaluation done there in February 1997.

The Veteran additionally enclosed the VA Forms 21-4142 (VA Authorization and Consent forms) that would have been necessary to obtain these confidential records had he not elected, instead, to submit them himself.  But these records dated in June 2007 and February 1997 already were in the file, so merely duplicative of evidence already considered.

As well in February 2011, the AMC sent the National Personnel Records Center (NPRC) a letter regarding the Veteran's USPS personnel records.  The NPRC, however, is a military records repository, so the NPRC understandably responded in March 2011 that it did not have any such civilian employee records, meaning the AMC needed to look elsewhere for these records.

Upon realizing this error, the AMC called the Veteran in June 2011 to let him know it had sent to get his USPS personnel records and all medical records from the incorrect place (referring to the NPRC).  Therefore, the AMC would be sending him another VA Form 21-4142 (VA Authorization and Consent form) for him to complete and return so the AMC, instead, could contact the USPS - assuming he provided the necessary contact information (address, etc.).  He said he did not do any hearing test at his USPS job, so it would be a "waste of time" trying to gather these records.  The AMC official told him, in response, that it would have to do what the REMAND had said to do (else risk a Stegall violation), thus, had to send him this form and have him complete and return it.  The AMC official indicated that, if he did not respond within 30 days, after his examination was done (another remand directive), it would send his case to be rated.  He said in response, "that's fine".  The AMC resultantly sent him this additional VA Form 21-4142 later in June 2011, also a VA Form 21-4138 (Statement in Support of Claim).

The additional VA medical opinion, as mentioned, subsequently was obtained in July 2011.  But also in July 2011 the USPS sent VA a letter indicating it does not require a physical examination as a term of employment, so affirming the Veteran's earlier indication that he did not have any hearing tests as part of his job with this other Federal agency.  Hence, there are no records of an audiology exam being performed on the Veteran during his employment screening into the USPS.

Still later in July 2011, the Veteran indicated on a VA Form 21-4138 that he had no further information in support of his claim.  He reiterated that he had not had any hearing test or evaluation as a term of employment with the USPS, also referencing the USPS's letter reaffirming as much.  And since he already had provided the VA Forms 21-4142 previously requested, along with medical documentation requested on those forms from the physicians indicated on them, he had no further documentation to add.  He therefore requested that the AMC please go ahead and forward his file on back to the Board for a decision on his claims.

The AMC provided him an SSOC in August 2011 readjudicating but continuing to deny his claims, and he submitted an additional statement later in August 2011 in response to that SSOC, as did his representative in an October 2011 post-remand brief.

The Board's additional remand of these claims in November 2011, as mentioned, was to obtain still additional comment from the VA compensation examiner, which she duly provided in March 2012.

The Veteran therefore has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).


In response to the most recent SSOC in August 2012, the Veteran's representative indicated a short time later that they did not have any additional evidence to submit regarding this appeal.  So, in order to expedite the processing of the claims, they asked that the AMC go ahead and return this case to the Board immediately, in the process waiving their right to wait the full 30 days allotted to submit additional evidence and argument.  They also indicated that, should they submit evidence at a later time, they were waiving the right to have the claim remanded (sent back) to the Agency of Original Jurisdiction (AOJ), i.e., to the RO/AMC, for initial consideration of the evidence, preferring instead to have the Board do so in the first instance.  38 C.F.R. § 20.1304.  However, no additional evidence has been submitted.  Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, the Board finds that the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002).

Relevant Statutes, Regulations and Cases

Service connection is granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306.

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).


Certain diseases are considered chronic, per se, including organic diseases of the nervous system such as sensorineural hearing loss, and therefore 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).

Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 

This rule does not mean that any manifestation in service will permit service connection.  To show chronic disease in service there is required 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."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When, however, the fact of chronicity in service is not adequately supported or legitimately questionable, then a showing of continuity of symptomatology after discharge from service is required to support the claim.  Id.  Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system".  Moreover, 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.  Tinnitus, on the other hand, is not listed in § 3.309(a) as chronic, per se, and therefore not subject to this continuity of symptomatology pleading and proof alternative.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

For purposes of establishing service connection, every Veteran 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; 38 C.F.R. § 3.304(b).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).

If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service.  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003).  To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition.  Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.")  It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). 

If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability.  And in that circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation.  Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

The provisions of 38 U.S.C.A. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated.  According to this statute and regulation, a pre-existing 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. 

Concerning this, mere 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, not just the symptoms, has worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  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.  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); and Green v. Derwinski, 1 Vet. App. 320, 323 (1991).

Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression.  The presumption of aggravation applies only when pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). 

Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). 

Independent medical evidence generally is needed to support a finding that a 
pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).


The evaluation of evidence generally involves a three-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 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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.  38 C.F.R. § 3.159(a)(2).

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).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards 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) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also 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).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay 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 at 511-512 (1995), 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").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on 
behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Hearing Loss

Turning now to the relevant facts and circumstances of this particular claim, the Veteran asserts that he developed hearing loss as a result of repeated exposure to extremely loud noise during his military service in his capacity as a gunner for an 81-mm mortar team.  His Department of Defense Form 214 (DD Form 214) shows that his military occupational specialty (MOS) was Indirect Fire Infantryman, so it is highly probable he was exposed to the level and extent of noise alleged.  See 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012) (requiring that VA give due consideration to the circumstances of his service).

It still has to be established, however, that he has bilateral hearing loss as a result or consequence of that noise exposure and presumed consequent injury, i.e., on account of that acoustic trauma.  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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  According to VA standards, however, impaired hearing only will be considered to be an actual 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 thresholds 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 (2012).


The Veteran's STRs do not mention any complaints of or treatment for hearing loss.  When entering service, he denied a history of ear trouble or hearing loss.  See Report of Medical History dated December 15, 1970.  An audiogram was given, and his puretone thresholds, in decibels, were as follows:




HERTZ


Dec. 1970
500
1000
2000
3000
4000
RIGHT
25
10
10
/
30
LEFT
25
20
20
/
35

Measurements were not taken at 3000 Hertz.  See Report of Medical Examination.  According to the results of that enlistment audiogram, he had some hearing loss at 500 and 4000 Hertz.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  His ears and eardrums were clinically evaluated as "normal" and the hearing aspect of his PULHES profile was rated as 1.  See Report of Medical Examination dated December 15, 1970; see also Odiorne v. Principi, 3 Vet.App. 456 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect that is below the level of medical fitness for retention in the military service)).

Nonetheless, this evidence indicates he clearly and unmistakably had some bilateral (i.e., right and left ear) hearing loss when beginning his active duty military service  a relatively short time later, in February 1971.  As already alluded to, the presumption of soundness when entering service found at 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304(b) attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted").  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).

But, here, there was a bit more than that seeing as though there was objective confirmation of pre-existing hearing loss bilaterally (meaning in both ears in the frequencies mentioned) according to the results of that entrance audiogram.  The only prerequisite for applying the presumption of soundness at service entrance is that the report of the enlistment examination have been free and clear of the later complained of disability.  See Quirin v. Shinseki, 22 Vet. App. 390 (2009).  But, conversely, objective confirmation of the pre-existence of the later complained of disability in the report of the enlistment examination means there is no such presumption when entering service.  Moreover, as explained, it is then incumbent on the Veteran, not VA, to show a chronic or permanent worsening of his 
pre-existing disability during or as a result or consequence of his service, meaning over and beyond the condition's natural progression.

The Veteran was given another examination in September 1972, during which his ears and eardrums were again clinically evaluated as normal.  An audiogram was given, and his puretone thresholds, in decibels, were as follows:




HERTZ


Sept. 1972
500
1000
2000
3000
4000
RIGHT
0
0
0
/
0
LEFT
0
0
0
/
0

Measurements were not taken at 3000 Hertz.  See Report of Medical Examination dated September 25, 1972.  His hearing again was rated a 1 on the PULHES profile, and he signed off on the statement that he was then in "good health."  Id.

A separation examination was not performed, however, the Veteran signed a Statement of Medical Condition indicating there had been no change in his health since the September 1972 examination.  See Statement dated February 8, 1973.  His military service ended in February 1973.


Comparing the findings just prior to separation with those from the earlier enlistment examination fails to show any appreciable worsening of his pre-existing hearing loss during or as a consequence of his military service.  Indeed, his hearing seemingly improved in all frequencies, as also noted in the January 2008 and March 2012 VA examination and addendum reports.  See VA examination dated January 22, 2008; VA examination addendum dated March 22, 2012.  One admittedly has to question, however, whether the across-the-board "0's" indicated in the report of that September 1972 examination, so in all frequencies, was in actuality an anomaly or suggestion a hearing evaluation was not in fact performed.  But even for the sake of argument accepting these possibilities, there still was no suggestion of a chronic or permanent worsening of the Veteran's pre-existing hearing loss during or as a result of his service - even if one discounts the report of that September 1972 examination because, as significantly, at no other time during the entirety his service did he ever complain about his hearing acuity, much less receive a relevant diagnosis suggesting it had worsened in comparison to what it was when he entered service.

There is no disputing he now has sensorineural hearing loss.  See The Speech and Hearing Center audiogram dated June 14, 2007, performed by W. R. (Wendy Richardson), Clinical Audiologist and case manager.  She did not, however, attribute the Veteran's sensorineural hearing loss to his military service, including by indicating it had worsened during or as a result of his service.  Indeed, she did not comment at all on the etiology of the hearing loss.  The February 1997 record the Veteran also has made reference to, from Lakeside Medical Center, only concerns an earache he was having at the time in his right ear, which, after evaluation, was determined to have been the result of impacted ear wax (cerumen).  So the ear was irrigated (drained), albeit with a great deal of difficulty.  He was placed on some Corticosporin Otic, apparently an antibiotic, because of otitis externa, meaning he had what amounted to a simple ear infection.  He also was given some Cerumenex to use to soften the ear wax in his left ear.  There was no other treatment that day, and the reports of his consultations there both prior and subsequent to that day were for other unrelated reasons - namely, contact dermatitis and pharyngitis.  The exam concerning the pharyngitis was described as "pretty benign".  There was no cervical adenopathy and no fever.

He was placed on Amoxicillin and Claritin D.  Again, though, there was no attribution of the pharyngitis to his military service, including by way of his hearing loss.

There equally is no other medical evidence dating from service or from the first year after separation from service, thus there is no medical evidence suggesting his hearing loss increased while in service.  He testified that he was not aware that he had pre-existing hearing loss until years after service, but that he felt that it did worsen during his service.  He said he had never noticed any difficulty hearing until he was in service, and that his friends would tease him about not being able to hear their conversations.  He is competent to attest to his personal experiences, as well as to report symptoms that are non-medical in nature, such as a decrease in his hearing acuity.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  He has not, however, been shown to have the necessary training or expertise to competently report that his hearing loss increased to such an extent during his service that it was aggravated, that is, that it increased beyond its normal progression.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  To reiterate, independent medical evidence generally is needed to support a finding that the documented pre-existing hearing loss increased in severity during his service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  This is especially true when, as here, the type of condition at issue and being claimed is not the type that is readily amenable to probative lay comment regarding its appropriate diagnosis, attendant symptoms, and etiology.  And, unfortunately, there simply is no such supporting medical evidence.  


Indeed, to the contrary, the only medical evidence addressing this determinative issue of etiology, including in terms of whether the Veteran's military service exacerbated any pre-existing hearing loss, is entirely unfavorable to this claim.  The VA compensation examiner that has been asked repeatedly to comment on this possibility steadfastly has refuted any such notion, including again in her most recent March 2012 opinion supplementing her prior addendum opinion.  She continued to disassociate the current hearing loss from the Veteran's service.

The Veteran also testified that a civilian doctor, Dr. J.Q., diagnosed him with hearing loss in 1975 (so just some 2 years after the conclusion of the Veteran's service in 1973), and suggested it was due to his service.  But when asked about the availability of these records, the Veteran indicated in response that Dr. J.Q. since had passed away and that he resultantly could not get these records.  Consequently, these records are not forthcoming.  Moreover, the connection between what a physician said and a layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, simply is too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection.  See Robinette  v. Brown, 8 Vet. App. 69, 77 (1995).

The Veteran also asserted that his doctor at The Speech and Hearing Center had associated his hearing loss with his service, but as already discussed no such records have been received confirming this.

So, all told, there simply is no supporting medical evidence concerning the claimed relationship between the Veteran's bilateral (right and left ear) sensorineural hearing loss and any disease, injury or event, especially acoustic trauma, which occurred during his military service.  As such, his claim of entitlement to service connection for bilateral hearing loss must be denied because the preponderance of the evidence is against his claim, in turn meaning there is no reasonable doubt to resolve in his favor.  38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Tinnitus

The Veteran contends that his tinnitus is a result of the same repeated noise exposure and consequent injury (acoustic trauma) that he asserted led to his hearing loss disability.

Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007).  Because tinnitus is "subjective," its existence is generally determined by whether the Veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Thus, because the Veteran has complained that he hears a "fierce hissing" constantly, and there is no evidence to contradict that he currently experiences the symptoms, the Board finds him to be competent and credible regarding having tinnitus.  In any event, so that aside, he has a clinical diagnosis of this condition.  See VA examination report dated July 26, 2011.

The Board also again concedes that it is highly probable he was exposed to traumatic noise as an Indirect Fire Infantryman.

The final inquiry, then, and what this claim ultimately turns on, is whether his current tinnitus is the result of the noise exposure in service.

He did not complain of tinnitus while in service.  He entered and exited service with no complaints of ever having experienced tinnitus or ringing in his ears.  See Reports of Medical Examination and History dated December 15, 1970; Report of Medical Examination dated September 25, 1972; and Statement dated February 8, 1973.

As importantly, during his more recent January 2008 VA examination, he denied having tinnitus, so no opinion on etiology was provided because there was no then current tinnitus to relate or attribute to his military service.  See VA examination report dated January 22, 2008.

During the additional VA examination since held in July 2011, he claimed to have constantly experienced the symptoms of tinnitus since the 1970s, so presumably dating back to around the time when he was in the military.  He was unable to give a firmer date, but thought that it possibly had started around 1975, keeping in mind however that his service ended in 1973.  The VA examiner resultantly said she could not opine on etiology without resorting to speculation.  See VA examination report dated July 26, 2011.

In the even more recent March 2012 VA examination addendum, drafted by the same VA examiner that had evaluated the Veteran in July 2011, she determined his tinnitus was not likely related to his military service.  In explanation, she referenced her July 2011 report indicating there was no evidence of the Veteran having tinnitus until 2011, apparently considering it significant that he previously had denied having this condition when earlier examined by VA for compensation purposes in January 2008, so during an intervening evaluation.  She added that his tinnitus was not related to his service because it was not diagnosed until many years later.  She indicated that the time between service and diagnosis-nearly forty years-was an unreasonable amount of time, too long of a time frame to establish a connection.  See VA examination addendum dated March 22, 2012.

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after 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 following the conclusion of his service during which there was no clinical documentation of the claimed disorder).

That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that).  Still though, 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).

The VA examiner considered it significant, so noteworthy, that there was no suggestion of tinnitus until so relatively long after the conclusion of the Veteran's service.  The Veteran acknowledges not having had any hearing tests in connection with his many years of employment with the USPS, in the interim, and he does not have any medical nexus evidence associating his tinnitus with his service or suggesting it incepted during his service.  Indeed, even he concedes it perhaps did not start until 1975 or thereabouts, so not at the earliest until some 2 years removed from his service.  Tinnitus is not a presumptive condition according to 38 C.F.R. § 3.309(a), so he cannot establish its presumptive incurrence during his service by showing it initially manifested to a compensable degree within one year of his separation from service, meaning by February 1974, or alternatively by showing continuity of relevant symptoms since service under § 3.303(b) to otherwise associate its incurrence with his service.  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").  As such, without the benefit of this pleading and proof alternative, his self-recounted lay history of this condition is probatively outweighed by the findings in the March 2012 VA examination addendum report.  See 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).

Accordingly, the preponderance of the evidence also is against this claim, and as explained in this circumstance the benefit-of-the-doubt doctrine does not apply, in turn requiring the denial also of this claim.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied.

The claim of entitlement to service connection for tinnitus also is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs