Citation Nr: 1321580 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 11-16 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from February 1969 to December 1971. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran's claim for service connection for bilateral tinnitus but, instead, denied his additional claim for service connection for bilateral hearing loss. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report these observable manifestations. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Further concerning his tinnitus, the RO assigned the highest possible rating for this condition, 10 percent, retroactively effective from December 9, 2009, the date of receipt of his claim. There simply is no greater schedular rating for this condition, irrespective of whether the tinnitus is unilateral, bilateral, or a sound perceived elsewhere in the head. 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2012). See also Smith v. Nicholson, 19 Vet. App. 63 (2005). Perhaps this is the reason he did not separately appeal either the rating or effective date assigned for this disability. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). He did, however, appeal the denial of his additional claim of entitlement to service connection for bilateral hearing loss. And as support for this other claim, he testified at a hearing at the RO in May 2011 before a local Decision Review Officer (DRO). FINDINGS OF FACT 1. The Veteran has a bilateral (i.e., right and left ear) hearing loss disability according to VA standards, but, unlike his tinnitus, it has not been attributed to his military service - including especially to acoustic trauma he likely sustained in the infantry. To the contrary, a VA compensation examiner that evaluated the hearing loss in April 2010 completely disassociated it from the Veteran's military service. 2. It also is not shown that a service-connected disability, including particularly Type II Diabetes Mellitus, either caused or is worsening the bilateral hearing loss. CONCLUSION OF LAW Bilateral (right and left ear) hearing loss is not shown to be the result of disease or injury incurred in or aggravated by the Veteran's active military service, may not be presumed to have been incurred during his service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist with this Claim The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of (1) the information and medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of (2) the information and evidence VA will obtain and of (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). See also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)), eliminating the so-called "fourth" requirement that VA also request that he submitted all relevant evidence in his personal possession). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But even if it was not, or if provided the notice was inadequate or incomplete, this timing error in the provision of the notice may be rectified ("cured") by providing all necessary notice and then readjudicating the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran still given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, VA satisfied its duty-to-notify obligation by issuing a pre-adjudication notice letter in December 2009, so in the preferred sequence since provided before initially adjudicating the claim in the April 2010 rating decision at issue in this appeal. The letter advised the Veteran of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also provided the required notice regarding the "downstream" disability rating and effective date elements of this service-connection claim. Dingess, 19 Vet. App. at 473. The duty-to-assist provisions of the VCAA also have been met. The claims file contains service treatment records (STRs), VA outpatient treatment records, and an April 2010 VA compensation examination report. The examination was adequate because it was based on a comprehensive evaluation, including the appropriate diagnostic testing, and involved consideration of the Veteran's pertinent medical history, particularly as indicated by the evidence in his claims file and from interviewing him personally. The examiner also provided the necessary opinions concerning whether the Veteran has this claimed condition and whether it is related or attributable to his military service or dates back to his service, and as importantly discussed the underlying medical rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (requiring that VA ensure the adequacy of a VA examination and opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran as mentioned also had a VA hearing in May 2011 before a local DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. 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. 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. During the hearing the presiding hearing officer (DRO) reminded the Veteran of the pertinent issue on appeal - his claimed entitlement to service connection for his bilateral hearing loss - and of how VA determines whether a claimed disability is related to military service, i.e., service connected. He did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. 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 purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Indeed, in his statements, pleadings and hearing testimony, the Veteran evidenced his actual knowledge of the type of evidence and information needed to substantiate this claim by showing his hearing loss, like his tinnitus, is the result of his military service. 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). The Veteran has not made the RO or Board aware of any other evidence needing to be obtained in order to fairly decide this appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of his appeal has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes 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 United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at 1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Because however the Veteran has been diagnosed with a particular type of hearing loss, namely, sensorineural hearing loss, and since sensorineural hearing loss is an organic disease of the nervous system for purposes of section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology since service. The Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. His sensorineural hearing loss also is eligible for presumptive service connection if shown to have manifested a compensable degree (meaning to at least 10-percent disabling) within one year from the date of his separation from service. However, this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. 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). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity. See Barr, 21 Vet. App. at 309. For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Hearing Loss Regarding claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity to be considered an actual ratable disability. Specifically, for purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As for whether the Veteran has this required level of hearing loss, he had a VA compensation examination in April 2010, including an audiogram, the results of which (with corresponding decibel losses) were: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 15 20 40 70 80 Left Ear 15 25 90 85 85 Additionally, he had Maryland CNC speech recognition scores of 94 percent (right ear) and 90 percent (left ear). He has hearing loss exceeding 40 decibels in both ears in at least one of the measured frequencies, so he has a ratable bilateral hearing loss disability for VA compensation purposes - meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385. Indeed, the VA examiner stated in her April 2010 report that he has normal-to-profound bilateral sensorineural hearing loss. Thus, he has satisfied the first prong of this service-connection claim by at least showing he has this claimed disability. As for indication of relevant disease, injury or event in service, the Board finds that his claimed acoustic trauma in service is consistent with the places, types, and circumstances of his service. 38 U.S.C.A. § 1154(a) and (b); 38 C.F.R. § 3.304(d). His DD Form 214 shows that his military occupational specialty (MOS) was in the infantry and that he received the Combat Infantry Badge (CIB). His receipt of the CIB is prima facie evidence he engaged in combat against an enemy force, meaning personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not merely instead serve in a general combat area or combat zone. This is a case-by-case determination, so fact specific. See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008); VAOPGCPREC 12-99 (October 18, 1999). Indeed, as he was in combat, and pursuant to 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), the Board accepts the claimed acoustic trauma inherent in mortar attacks and arms fire as having occurred. Thus, there is sufficient proof of an in-service incurrence of a relevant injury, thereby satisfying the second requirement of this service-connection claim. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). And here, unfortunately, there is no such supporting evidence. Despite satisfying the first two requirements for service connection, proof of current disability and relevant injury (acoustic trauma) in service, the Board finds that the third and final requirement - the so-called "nexus" requirement - has not been met. The STRs reveal the Veteran was administered two audiograms while in service - one in February 1969 at time of induction, the other in December 1971 upon separation. He stated in his May 2010 Notice of Disagreement (NOD) that he did not believe he had an audiogram performed when separating from service, but that "if it was it was a quick one." He reiterated this allegation during his May 2011 DRO hearing. But upon reviewing the separation examination report, the Board finds no inherent reason to doubt the results as recorded or to simply summarily reject them out of hand. According to the results of his February 1969 audiometric evaluation when entering service, he had the following decibel losses in the indicated frequencies: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 10 10 10 10 10 Left Ear 10 10 10 10 10 In comparison, when later reexamined in December 1971 in anticipation of separating from service, he had the following decibel losses in the indicated frequencies: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear Not tested 0 0 0 0 Left Ear Not tested 0 0 0 0 So the reports of these examinations show he had normal hearing acuity both when entering and separating from service. Indeed, he acknowledged not having hearing loss either at the time of separation or prior to during his immediately preceding separation examination. A March 2005 VA outpatient treatment record shows he indicated having hearing problems. In December 2009, he had a VA audiogram. The evaluating VA audiologist diagnosed bilateral sensorineural hearing loss that was moderate-to-severe in the 3000 - 8000 Hertz range. During that examination, the Veteran denied any significant noise exposure in his post-service civilian occupations, and explained that whenever he was exposed to noise in his recreational activities as a civilian he consistently had used noise protection to muffle the sound and resultantly lessen the impact. Nevertheless, the April 2010 VA compensation examiner observed the Veteran had "entered and separated from the military with normal hearing bilaterally, as measured by audiometric threshold testing." And as the Institute of Medicine (IOM) has found no scientific basis for concluding delayed-onset hearing loss occurs, she stated the "absence of hearing loss or changes in hearing beyond normal variability cannot be causally related to hearing loss that appears later." As such, she determined that "military noise exposure did NOT cause/contribute to" the Veteran's hearing loss. While the Veteran has offered numerous lay statements suggesting a correlation between his military service and eventual development of bilateral hearing loss, he has offered no medical evidence supporting an etiology of his bilateral hearing loss as being caused by events coincident with his military service. Indeed, the VA compensation examiner's unfavorable opinion is the only medical nexus evidence in the claims file addressing this determinative issue of causation. As such, this requirement to establish entitlement to service connection has not been satisfied, so service connection pursuant to § 38 C.F.R. § 3.303(a) must be denied. 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."). For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service, as opposed to other unrelated factors ("intercurrent causes"). Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley, 5 Vet. App. at 159. Here, though, even acknowledging this VA regulation and precedent holdings, unlike his tinnitus, the evidence does not establish the Veteran's hearing loss was incurred during his military service or that it is otherwise related or attributable to his service or dates back to his service. As already explained, sensorineural hearing loss alternatively may be shown to be related to his military service if supported by evidence of continuity of symptomatology since his service or on a presumptive basis by showing it initially manifested to a compensable degree (meaning to at least 10-percent disabling) within the required one year of his discharge from service. But neither is shown here; not only is there no objective confirmation of hearing loss during his service, including even after he experienced the acoustic trauma from repeated exposure to excessively loud noise, but there equally is no competent and credible indication of sensorineural hearing loss even within the one-year presumptive period immediately following the conclusion of his service or even for many ensuing years. Although he has alleged to have experienced continuity of hearing loss since service, the Board does not find him credible in this assertion. First, during his military separation examination he denied having hearing loss. Second, there is no evidence that his hearing loss manifested to the required degree of 10 percent or more within one year from the date of his separation from service, meaning by December 1972 since his service ended in December 1971, let alone until many years after service. Indeed, the earliest evidence of hearing loss dates from March 2005, some 34 years after his separation from service. In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, albeit just not the only or sole factor, in determining whether a disease or an injury in service (here, the conceded acoustic trauma) 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 following service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). There equally is no suggestion the Veteran's bilateral hearing loss is secondarily related to his service by way of a service-connected disability like his Type II Diabetes Mellitus. This additional issue of entitlement to service connection for bilateral hearing loss as secondary to his service-connected Type II Diabetes Mellitus was raised in his December 2010 lay statement during the pendency of his appeal. This newly-alleged basis of entitlement, however, does not amount to an entirely new claim, instead, represents the same claim only a different theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (Separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability.); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). His Type II Diabetes Mellitus has several documented residual complications, namely, erectile dysfunction (ED), bilateral upper and lower extremity peripheral neuropathy, and hypertension. But unlike those conditions, his hearing loss has not been attributed by competent and credible medical opinion to the diabetes, so has not been shown to be an additional complication or this or any of his other service connected disabilities, which for purposes of discussion are posttraumatic stress disorder (PTSD) and Hepatitis C. Moreover, this is not a situation where he can establish this cause-and-effect correlation or aggravation, himself, since diabetes and hearing loss are not the types of simple conditions that are readily amenable to probative lay comment regarding their etiologies and, here, interrelatedness. So there needs to be supporting medical nexus evidence, and unfortunately there is not. See again 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 these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for bilateral hearing loss, and this being the case the doctrine of reasonable doubt is not for application, and this claim accordingly must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-57 (1990). ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs